Full Judgment
W.P.No.1272/2011 Devendra Singh Rajput vs. State of M.P. & ORS.21.06.2013 Shri Maninder S.
Bhatti learned counsel for the petitioner.
Shri Kumaresh Pathak, learned Dy.
Advocate General for the respondent/State.
Shri Praveen Dwivedi learned counsel for respondent no.4.
Shri Vivek Porwal, Collector, Jabalpur and Shri Mukesh Jain, CEO present in person.
The petitioner has filed this petition being aggrieved by order dated 21.12.2010 passed by respondent no.1 in the revision proceedings taken up by the respondent no.5 against the orders passed by the competent authority in proceedings relating to the issue of removing him from the post of Secretary of Gram Panchayat Konikala, Janpad Panchayat Majholi, Tehsil Sihora, District Jabalpur.
The learned counsel for the petitioner submits that the petitioner was appointed and was working as Secretary of the aforesaid Gram Panchayat since 1997.
On 23.1.2001 a complaint was filed against him through a MLA of the local area which was forwarded to the Collector for enquiry.
It is submitted by the petitioner that in the said enquiry the petitioner was warned for being careful in future and thereafter the enquiry was closed.
It is submitted that subsequently under pressure from certain individuals including respondent no.5 the same enquiry was reopened and an adveRs.order against the petitioner was passed on 18.8.2004 W.P.No.1272/2011 Devendra Singh Rajput vs. State of M.P. & ORS.cancelling his notification as Panchayat Secretary under section 69 of the M.P.Panchayati Raj Evam Gram Swaraj Adhiniyam, 1993.
The appeal filed by the petitioner before the Commissioner was dismissed on 23.12.2004 against which the petitioner filed an application for review which was disposed of on 25.10.2005 with a direction to the Gram Panchayat to consider the case of the petitioner.
Against the said order passed by the Commissioner in review, the respondent no.5 filed a revision before the State Government in which an interim order was passed on 27.3.2008 against which the petitioner had filed W.P No.4445/2008 which was disposed of by order dated 16.4.2008 with a direction to the revisional authority to decide the revision within a period of one month and till then the petitioner was permitted to continue as Secretary.
Pursuant to the orders passed by this Court, the revisional authority ultimately passed the impugned order dated 21.12.2010 allowing the revision and affirming the order of removal of the petitioner as Panchayat Secretary.
The petitioner, being aggrieved has filed the present petition contending that on the same set of charges one enquiry had already been conducted by the authorities in which no punishment was imposed upon the petitioner except for cautioning the petitioner for being careful in future and in such circumstances the respondent authorities could not and cannot reopen the enquiry on the same charges and dismiss the petitioner W.P.No.1272/2011 Devendra Singh Rajput vs. State of M.P. & ORS.as has been done in the present case.
It is further contended that the petitioner was not given any opportunity of hearing in the subsequent proceedings taken up by the respondents and without following the procedure prescribed by law the impugned order of punishment has been passed which deserves to be quashed.
In the present case the respondent/State was noticed and was directed to file the return and was also directed to produce the record of the enquiry conducted against the petitioner.
As the record, as directed by this Court, was not produced inspite of repeated ordeRs.this Court directed the personal presence of the Collector, Jabalpur and CEO Majholi, District Jabalpur before this Court.
The said two officers are present.
They have also filed a reply to the show cause issued to them for non- complying with the orders passed by this Court and have submitted a detailed enquiry report conducted by them on the issue of non-production of the record.
The report of the SDO Sihora, District Jabalpur dated 8.6.2013/11.6.2013 has been placed on record in which the said officer has stated that the record of the case is missing and the two clerks responsible for keeping the record in safe custody have died and, therefore, no information in respect of the same is available.
The report states that the record is missing and is not traceable.
On the strength of the document on record the SDO has further stated that it is not clear as to what W.P.No.1272/2011 Devendra Singh Rajput vs. State of M.P. & ORS.happened after initiation of the enquiry after 2001 not is it clear as to what were the issues, allegations or charges in respect of which enquiry was conducted.
When confronted with the aforesaid situation, the Collector who is present in the Court, tenders his unconditional apology and thereafter states that he is taking steps for computerization and thereafter proper safe keeping of the records to ensure that they are available and do not get misplaced in such a manner.
He also tenders his unconditional apology for the inconvenience caused to this Court.
On merits, it is submitted by the learned counsel for the respondent no.5 as well as the learned Dy.
Advocate General appearing for the State that a perusal of Annexure P-2 filed by the petitioner indicates that the enquiry initiated against the petitioner in the year 2001 was not concluded and was in fact pending before the authorities, however they are unable to make any statement to the effect that the enquiry conducted in the year 2001 and the subsequent order of dismissal passed in the year 2004 were inter connected or were passed on the basis of separate enquiry or charges as the records in respect of the same is not available.
The learned counsel appearing for the respondent also pointed out that the Commissioner in his order dated 23.12.2004 has clearly stated, after perusal of the record which was summoned from the SDO, that the petitioner was given due opportunity of hearing.
However, they admit that the record in that regard is W.P.No.1272/2011 Devendra Singh Rajput vs. State of M.P. & ORS.missing and they are not able to place any document before this Court to indicate or establish that the petitioner was in fact given an opportunity of hearing or that the procedure prescribed by law for conducting an enquiry was followed while removing him from the post of Secretary.
They are also unable to indicate or state with any authority that the order of removal of the petitioner in the year 2004 was passed in separate proceedings or was a result of an enquiry that was initiated against the petitioner in the year 2001.
In view of the aforesaid, it is submitted by the learned Dy.
Advocate General that the respondent authorities, i.e.the SDO who had initiated proceedings against the petitioner in the year 2001 be directed to proceed against the petitioner in accordance with law and conduct an enquiry on the charges which have been mentioned in Annexure P-2 and pass orders thereon after giving due opportunity of hearing to the petitioner.
The submission of the learned Dy.
Advocate General appearing for the State is accepted by the learned counsel for the petitioner as well as the learned counsel for respondent no.5.
In the light of the aforesaid facts which have been stated above, it is clear that for doing proper justice no other couRs.is available except for the above in the light of the fact that the entire record relating to the enquiry is missing and there is nothing on record to indicate that the procedure prescribed by law was followed.
W.P.No.1272/2011 Devendra Singh Rajput vs. State of M.P. & ORS.In the circumstances, as prayed by the learned counsel for the parties, the petition filed by the petitioner is disposed of with a direction to the SDO Sihora to conduct an enquiry against the petitioner by following the procedure prescribed by law on the charges levelled against the petitioner in the complaint filed in the year 2001 which has been mentioned in detail in Annexure P-2.
Looking to the lapse of time it is ordered that the petitioner shall render full co-operation in the enquiry which shall be concluded within a period of three months.
It is made clear that in view of the order passed today, the impugned orders dated 18.8.2004, Annexure P-3 and 21.12.2010, Annexure P-10, are hereby stand quashed.
However, the services of the petitioner shall be subject to the outcome of the aforesaid enquiry.
With the aforesaid direction, the petition, filed by the petitioner, stands disposed of.
C.C as per rules.
( R.S.JHA ) JUDGE mms/-