The other aspect of the matter which requires the consideration is the action of dismissing the petitioner from service on the ground that a criminal offence was registered against him under provisions of Sections 294, 506 and 509 of the Indian Penal Code. The criminal proceedings are said to be pending and the petitioner is yet to be convicted for the alleged offences. The resolution dated 25-3-2013 passed by the Gram Panchayat merely refers to the registration of aforesaid offence against the petitioner. Said resolution further indicates that there were deliberations on various other aspects pertaining to the services of the petitioner. As noted above, there was no show cause notice given to the petitioner with regard his unsatisfactory discharge of duties or his indulging in political activities. Therefore, it will have to be examined as to whether the respondent No.3 was justified in dismissing the petitioner from service underSection 61(1) of the said Act in the manner in which the same has been done.
10. It cannot be disputed that under provisions of Section 61(1) of the said Act the Gram Panchayat has the power to dismiss any servant appointed by it. There is no procedure prescribed in Section 61 of the said Act to indicate the manner in which a servant can be dismissed from service.
The act of dismissing a servant from services results in visiting such servant with civil consequences. As held by the Hon'ble Supreme Court in Mohindersingh Gill Vs. Chief Election Commissioner (1978) 1 SCC 405 civil consequences would include everything that affects a citizen in his civil life. Reference can also be made to the observations of the Hon'ble Supreme Court in the case of D.K. Yadav Vs. J.M.A. Industries Ltd. (1993) 3 Supreme Court Cases 259. In para 11 thereof, it was observed thus:
"11. The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi- judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both."
Bombay High Court
Ashok Govindrao Sardar (Water ... vs The Chief Executive Officer, Z.P.
Bench: A.S. Chandurkar
WRIT PETITION NO.2395 OF 2015
Citation:2016(2) ALLMR 413
DATE ON WHICH JUDGMENT IS PRONOUNCED: 29-01-2016.
1. By this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner who is an employee of Gram Panchayat Pimpalkhuta, Panchayat Samiti, Amravati takes exception to the order dated 21-1-2015 passed by the Chief Executive Officer, Zilla Parishad, Amravati whereby the appeal filed by Gram Panchayat, wp2395.15.odt 2/14 Pimpalkhuta under Section 61(1) of the Maharashtra Village Panchayats Act, 1958 (for short, the said Act) has been allowed and the order dismissing the petitioner from service has been upheld.
2. The facts relevant are that the petitioner came to be appointed as a Water Supply employee of Gram Panchayat Pimpalkhuta on 3-10-1986. According to the petitioner, services rendered by him were satisfactory and without any complaints. On 12-12-2012, the Sarpanch of the Gram Panchayat issued a notice to the petitioner calling upon him to furnish explanation with regard to an allegation of indecent behaviour with a lady computer apprentice. The petitioner submitted his explanation on 14-12-2012 denying the allegation as made. The petitioner was then informed by the Village Development Officer that a further decision in the matter of permitting the petitioner to rejoin duties would be taken in the monthly meeting of the Gram Panchayat. On 4-3-2013, the petitioner was informed that an offence has been registered against him under Sections 294, 506and 509 of the Indian Penal Code and he was, therefore, asked to show cause in that regard. The petitioner submitted his reply to aforesaid notice on 9-3-2013 and denied the allegation as made. On 25-3-2013, resolution No.9 came to be passed by the Gram Panchayat resolving to dismiss the petitioner from services. On the same day an order of termination came to be passed on the ground that the explanation submitted by the petitioner was not found satisfactory. In said order it was also stated that an offence had been registered against the petitioner and that thewp2395.15.odt 3/14 petitioner was also indulging in political activities.
3. The petitioner being aggrieved by aforesaid order of dismissal filed an appeal before the Block Development Officer under provisions of Section 61 of the said Act. The Block Development Officer after hearing the concerned parties passed an order on 18-7-2013 and held that in so far as the registration of offence against the petitioner was concerned, further action was being taken by the Police Authorities.
In so far as the other charges were concerned, it was observed that no explanation in that regard was sought from the petitioner. Hence, the order of dismissal was set aside and the petitioner was directed to be reinstated in service.
The Gram Panchayat being aggrieved by aforesaid order filed a revision application underSection 61(1) of the said Act. The Chief Executive Officer after hearing the concerned parties held that there were various complaints received concerning discharge of duties by the petitioner. Similarly, serious allegations were levelled against the petitioner for which a criminal complaint was pending. It was, therefore, held that it would not be proper to reinstate the petitioner and on that count the revision application filed by the Gram Panchayat came to be allowed. As a result, the order of dismissal came into force. Being aggrieved, the petitioner has filed the present writ petition.
4. Shri Y. P. Kaslikar, learned Counsel for the petitioner submitted that the action of the Gram Panchayat dismissing the petitioner from service was contrary to law. He submitted that in thewp2395.15.odt 4/14 show cause notice issued to the petitioner, he was asked to show cause as regards the allegation of indecent behaviour with a lady computer apprentice. With regard to said incident, a police complaint had been filed. There was, however, no notice given with regard to the allegation regarding unsatisfactory discharge of duties on the basis of which respondent No.1 upheld the order of dismissal. According to him, merely because a criminal complaint had been filed, same would not be a ground to dismiss the petitioner from service especially when there was no order of conviction passed in said proceedings. Reference was made to the Maharashtra Village Panchayats Servants (Recruitment and Conditions of Service) Rules, 1960 (for short, the said Rules) and it was submitted that under Rule 3 (c) of the said Rules, conviction by a criminal Court was a disqualification for a person seeking employment as servant of the Gram Panchayat. He further submitted that the fact that the petitioner had discharged his duties satisfactorily was evident from various certificates issued by the Gram Panchayat, the last being issued on 5-12-2012. Thus, according to him, there was no justification whatsoever to dismiss the petitioner from service. The Block Development Officer had rightly allowed the appeal filed by the petitioner, but said order was set aside by respondent No.1 without any legal justification. He, therefore, submitted that the petitioner was entitled to be reinstated in service.
5. Shri J. B. Kasat, learned Counsel for respondent Nos.1 & 2 and Shri N. A. Gawande, learned Counsel for respondent No.3 supported wp2395.15.odt 5/14 the impugned order. It was submitted that the action of dismissing the petitioner from services had been taken in accordance with law. A show cause notice had been duly issued to the petitioner and after considering the explanation furnished by the petitioner, said action had been taken.
Reference was made to the provisions of Section 61(1) of the said Act which empowered a Gram Panchayat to dismiss a servant of the Gram Panchayat and it was submitted that the impugned action was taken on that basis. Reference was also made to provisions of Rule 11 of the said Rules to urge that a panchayat has been prohibited from reinstating any panchayat servant who has been convicted by a Court unless he is honourably acquitted. It was submitted that various complaints had been received with regard to unsatisfactory discharge of duties by the petitioner and the order of dismissal had been passed by the Gram Panchayat keeping in view the aspect of proper administration and discharge of duties. It was thus submitted that there was no reason to interfere with the impugned order.
6. I have given due consideration to the respective submissions and I have gone through the documents filed on record.
It is not in dispute that two notices came to be issued to the petitioner.
On 12-12-2012 an explanation was sought from the petitioner with regard to a complaint submitted by a lady computer apprentice alleging indecent behaviour on the part of the petitioner on 7-12-2012. Another show cause notice dated 4-3-2013 was issued to the petitioner calling upon him to furnish explanation with regard to the allegation of wp2395.15.odt 6/14 indecent behaviour. Reference was also made to a criminal complaint case filed against the petitioner. It was stated in the said notice that if the explanation is not found satisfactory then action underSection 61 of the said Act would be taken. Both the aforesaid notices were replied by the petitioner denying the allegation as being false and baseless. On 25-3-2013 in the monthly meeting of the Gram Panchayat, the issue with regard to action to be taken against the petitioner was discussed. It was noted by the members that the services of the petitioner while working as Water Supply employee were not satisfactory. It was further observed that a criminal complaint had been filed against the petitioner under various provisions of the Indian Penal Code. It was then observed that the petitioner was indulging in political activities. On that basis, a resolution was passed by majority resolving to dismiss the petitioner from service. On the same day, an order of dismissal from service came to be issued.
7. It would be necessary to refer provisions of Section 61(1) of the said Act which empower the Gram Panchayat in the matter of appointment of servants.
Section 61(1) of the said Act reads as under:-
"61. (1) A Panchayat may appoint such servants as may be necessary for the proper discharge of its duties under this Act and pay their salaries from the village fund. A Sarpanch may also, in cases of emergency, engage such temporary servants as he may deem necessary. A Panchayat may, from time to time, by written order, fine, suspend or dismiss any servant appointed by it; but an appeal shall lie against any such order passed by the Panchayat to the Block Development Officer, within one month from the date of the communication of the order to wp2395.15.odt 7/14 the servant. An application for revision may be made to the Chief Executive Officer against the decision of the Block Development Officer in such appeal:
Provided that, no such application shall be entertained if it is not made within a period of one month from the date of such decision:
Provided further that, no such appeal or application shall be decided unless the servant of the Panchayat is given an opportunity of being heard.
Rule 3(c) of the said Rules reads as under:
"3. Disqualifications.-- No person shall be employed as servant of the panchayat, if--
(c): he has been convicted by a criminal Court of any offence relating to elections or involving moral turpitude".
ig Rule 11 of the said Rules reads as under:
"11. Panchayat not to reinstate person convicted in criminal Court.-- The panchayat shall not reinstate any panchayat servant who has been convicted in a criminal Court unless he is honourably acquitted in appeal or revision."
The aforesaid statutory provisions indicate that a Panchayat is empowered to fine, suspend or dismiss any servant appointed by it and against any such order an appeal can be filed before the Block Development Officer. A further remedy of revision has been provided before the Chief Executive Officer. Conviction for any offence relating to elections or moral turpitude is treated as a disqualification for being employed as servant of the Gram Panchayat. A Panchayat servant who has been convicted is not entitled to be reinstated unless he is honourably acquitted in appeal or revision.
8. It would first be necessary to consider the challenge to the order of dismissal on the ground that same has been issued by taking into consideration grounds that were never made part of the show wp2395.15.odt 8/14 cause notice. As stated above, the show cause notice issued to the petitioner was with regard to registration of offence under Sections 294, 506 and 509 of the Indian Penal Code. Except this allegation, there were no other allegation made against the petitioner. However, the resolution dated 25-3-2013 as well as the order of dismissal refers to unsatisfactory discharge of duties in the matter of water supply and indulging in political activities besides an offence being registered against the petitioner. It is by now well settled that an action taken on the basis of a charge or allegation which is not mentioned in the show cause notice cannot be sustained. Reference in that regard can be made to the decision of the Hon'ble Supreme Court in Raymond Woolen Mills Limited and another Vs. Director General (Investigation and Registration) and another (2008) 12 SCC 73. As there was no charge or allegation with regard to unsatisfactory discharge of duties by the petitioner or with regard to participation in political activities, said allegations for which no explanation was sought from the petitioner could not have been the basis for dismissing him from service. Though it was open for the Gram Panchayat to have taken necessary action against the petitioner on aforesaid allegations, absence of the same in the show cause notice renders the action of dismissal from service on said counts vulnerable.
The order of dismissal, therefore, based on the grounds of unsatisfactory service and participation in political activities cannot be sustained. The Block Development Officer in his order dated 18-7-2013 rightly found that there was no notice given with regard to aforesaid allegations and, wp2395.15.odt 9/14 therefore, the action of dismissal on said count was illegal. Thus, the order of dismissal dated 25-3-2013 on the ground that discharge of duties by the petitioner was unsatisfactory and that he had indulged in political activities cannot be sustained.
9. The other aspect of the matter which requires the consideration is the action of dismissing the petitioner from service on the ground that a criminal offence was registered against him under provisions of Sections 294, 506 and 509 of the Indian Penal Code. The criminal proceedings are said to be pending and the petitioner is yet to be convicted for the alleged offences. The resolution dated 25-3-2013 passed by the Gram Panchayat merely refers to the registration of aforesaid offence against the petitioner. Said resolution further indicates that there were deliberations on various other aspects pertaining to the services of the petitioner. As noted above, there was no show cause notice given to the petitioner with regard his unsatisfactory discharge of duties or his indulging in political activities. Therefore, it will have to be examined as to whether the respondent No.3 was justified in dismissing the petitioner from service underSection 61(1) of the said Act in the manner in which the same has been done.
10. It cannot be disputed that under provisions of Section 61(1) of the said Act the Gram Panchayat has the power to dismiss any servant appointed by it. There is no procedure prescribed in Section 61 of the said Act to indicate the manner in which a servant can be dismissed from service.
The act of dismissing a servant from services results in visiting such servant with civil consequences. As held by the Hon'ble Supreme Court in Mohindersingh Gill Vs. Chief Election Commissioner (1978) 1 SCC 405 civil consequences would include everything that affects a citizen in his civil life. Reference can also be made to the observations of the Hon'ble Supreme Court in the case of D.K. Yadav Vs. J.M.A. Industries Ltd. (1993) 3 Supreme Court Cases 259. In para 11 thereof, it was observed thus:
"11. The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi- judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both."
11. It is to be noted that the provisions of Section 61(1) of the said Act do not exclude the applicability of the principles of natural justice. Even if said provisions do not contemplate compliance with principles of natural justice, the same cannot be given a total go bye.
The requirement of giving a reasonable opportunity of being heard would have to be read into aforesaid provisions. Reference in that wp2395.15.odt 11/14 regard can be made to the judgment of the Hon'ble Supreme Court in Sahara India (Firm) Vs. Commissioner of Income Tax Central-I and another (2008) 14 SCC 151 wherein in para 19 it was observed thus:
"19. Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes then application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial."
ig Though it was observed that there could be exceptions to the aforesaid principles, the provisions of Section 61(1) of the said Act cannot be read in a manner so as to exclude the applicability of the principles of natural justice. Needless to state that the same would include giving a reasonable opportunity of being heard. This position is fortified by then judgment of the Hon'ble Supreme Court in Managing Director UP Warehousing Corporation and another vs. Vijay Narayan Vajpai (1980) 3 SCC 459. In said case, there was a complaint of theft, misappropriation and other irregularities against an employee of the Warehousing Corporation. After holding a preliminary enquiry, a chargesheet was served on said employee after which the employee was dismissed from service on the ground that his explanation was not found satisfactory. The order of dismissal was challenged by filing a writ petition under Article 226 of the Constitution of India. The writ petition was allowed by the learned Single Judge and the appeal filed by thewp2395.15.odt 12/14 Corporation was dismissed. It was held by the Hon'ble Supreme Court that the concerned employee was employed by the Corporation in exercise of powers conferred on it by the statute which created it. The power to dismiss him from service was also derived from said statute. It was held that the Court would, therefore, presume the existence of a duty on the part of dismissing Authority to observe the rules of natural justice. It was further held that no such enquiry was held and the order of dismissal was passed summarily after perusing the explanation furnished. As the rules of principles of natural justice were not honoured, the impugned the order was set aside.
12. In the present case after a show cause notice was given to the petitioner and his reply was received, the Gram Panchayat passed a resolution resolving to dismiss the petitioner from services. There was no reasonable opportunity granted to the petitioner to justify his defence before dismissing him from service. There was no opportunity to putforth his explanation before said action was taken. Though provisions of Section 61(1) empower the Gram Panchayat to dismiss any servant, said power cannot be exercised in a manner that gives a go bye to the principles of natural justice. There is no power with the Gram Panchayat to dismiss a servant merely on the ground that an offence has been registered against him. Mere registration of an offence in these facts by itself cannot be treated as a reason for dispensing with holding of an enquiry whatsoever especially when the services of a servant were sought to be dismissed. In State of UP and another Vs. Ram Vinayak wp2395.15.odt 13/14 Sinha (2010) 15 SCC 305, an Assistant Engineer in the Irrigation Department was appointed on ad hoc basis and his services were subsequently regularized. Thereafter an offence under Section 5(2) of the Prevention of Corruption Act, 1947 was registered against him. The State Government terminated his services on the ground that same were not required. It was held by the Hon'ble Supreme Court that the termination of services was sought to be justified on the ground that he was found unsuitable in view of a criminal case being registered against him. It was held that same was not termination simplicitor and in absence of any opportunity of being heard, the order of termination was in violation of principles of natural justice. Said order was accordingly set aside.
The facts of the case in hand indicate that the petitioner was in service since the year 1986. Therefore, if his services were to be dispensed with after about 26 years, the same could have been done after grant of reasonable opportunity to prove his stand. The impugned order passed by the respondent No.3 dismissing the petitioner from service without grant of any reasonable opportunity is, therefore, liable to be set aside on the ground that the same is in violation of the principles of natural justice.
13. Once it is found that the action of the Gram panchayat of dismissing the petitioner from service is vitiated on account of violation of the principles of natural justice, the same is liable to be set aside. The Block Development Officer, Panchayat Samiti, Amravati Zilla Parishad,wp2395.15.odt 14/14 Amravati had rightly found the impugned action to be illegal and had allowed the appeal filed by the petitioner. The Chief Executive Officer however, took into consideration aspects on which no show cause notice had been given to the petitioner and allowed the appeal filed by the Gram Panchayat. Said order resulting in miscarriage of justice and against the settled principles of law cannot be sustained.
14. In view of aforesaid discussion, the following order is passed:
ORDER
(a) ig It is held that resolution dated 25-3-2013 passed by the respondent No.3 dismissing the petitioner from services is contrary to law and the same is accordingly set aside.
(b) The order dated 17-7-2014 passed by the Chief Executive Officer is set aside and the order dated 18-7-2013 passed by the Block Development Officer stands restored. It is clarified that the petitioner shall be reinstated in service with continuity and subject to outcome of the proceedings before the criminal Court.
(c) It is open for the respondent No.3 - Gram Panchayat to take necessary disciplinary action against the petitioner under Section 61(1) of the said Act in accordance with law.
(d) Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE //MULEY//
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