1 Writ Appeal No.156/2013 27.02.2013 Shri Rajendra Tiwari, learned Senior counsel with Shri P.K.Pandey, learned counsel for the appellant.
Shri Anil Lala, learned counsel for the respondent No.1.
Shri Kumaresh Pathak, learned Deputy Advocate General for the respondents No.2, 3, 4 and 5.
None for respondents No.6, 7 and 8.
With consent the appeal is heard finally.
This Intra-Court Appeal under Section 2(1) of The M.P.Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, at the instance of Gram Panchayat Chourahi is directed against order dated 29.01.2013 passed in W.P.No.3441/2010 (s) whereby while relying on the decision in Lalla Prasad Burman v.
State of Madhya Pradesh and otheRs.2008 (3) MPLJ 39 and Sarpanch, Gram Panchayat Bhargura Khurd v.
Santosh Singh & ORS.2010 (4) 2 MPLJ 41 and by setting aside the order of removal dated 25.04.2009 passed by Gram Panchayat against respondent No.1, Panchayat Karmi, which was as per stipulation in Panchayat Karmi Yojna brought in vogue by State Government vide F-2/12/22/i-1/95 date 12.9.1995 in exercise of power under Section 70 (1) read with Section 69 (1) of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam 1993, learned Single Judge granted liberty to take action in accordance with the provisions of Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999.
Carving out a distinction between a Panchayat Karmi appointed under Panchayat Karmi Scheme and a Secretary nominated under Section 69 (1) of the 1993 Act, it is contended by learned Senior Counsel that a disciplinary action against Panchayat Karmi is governed by Clause 7 of Panchayat Karmi Scheme and Gram Panchayat vested with the powers to take disciplinary action after show cause notice and is not under an obligation to have taken recouRs.to Rule”
1999. which in the given facts of Lalla Ram (supra) would at most apply to the Secretary and other employees of Panchayat.
Though respondent No.1 supports the order passed by learned Single Judge.
The submissions on behalf of the appellant when examined on the touch stone of Clause 7 of Panchayat Karmi Scheme, Section 69(1) of the 1993 Adhiniyam and paragraph 5 and 6 of the decision in Lalla Ram (supra) we find ample force in the submissions on behalf of the appellant that the Panchayat Karmi being a different entity from the Secretary, stipulations in the Scheme has to be followed while taking any disciplinary action.
Panchayat Karmi when appointed as per Scheme of 12.09.1995 does not ipso facto becomes a Secretary of Gram Panchayat which can only be when the Prescribed Authority nominates in exercise of powers under Section 69 (1) of 1993 which provides for-
“6. (1).The State Government or the 4 prescribed authority may appoint a Secretary for a Gram Panchayat or group of two or more Gram Panchayats: Provided that the person holding the charge of a Secretary of Gram Panchayat immediately before the commencement of this Act shall continue to function as such till a Secretary is appointed in accordance with this Section.
[Provided further that a person shall not hold charge of a Secretary of Gram Panchayat, if such a person happens to be relative of any office bearer of the concerned Gram Panchayat.
Explanation- For the purpose of this sub-section the expression “relative”.
shall mean father, mother, brother, sister, husband, wife, son, daughter, father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter in law.].[(2) The State Government shall appoint for every Janpad Panchayat a Chief Executive Officer and may be also appoint one or functions and perform such duties as may be assigned to them by the Chief Executive Officer.].”.
In Lalla Ram (supra) it has been held in paragraph 5 and 6 which we reproduce-
“5. After hearing learned counsel for the parties, we find that the Collector, Shahdol 5 has lost sight of the Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999 (for short 'the Rules, 1999') while passing the order dated 29.6.2007 denotifying the appellant as Panchayat Secretary under Section 69(1) of the Act.
Sub-Rule (3) of Rule 1 of the Rules, 1999 states that except otherwise provided by or under these rules, they apply to all persons employed in connection with the affairs of inter alia the Gram Panchayat and discharging the functions of Gram Panchayat.
Secretary of Gram Panchayat is employed in connection with the affairs of Gram Panchayat and discharging the functions of Gram Panchayat.
Hence, the Rules, 1999 are applicable to him.
It is not disputed that the appellant was notified as Panchayat Secretary as far back as on 12.10.1999 and is working as such Panchayat Secretary for about eight yeaRs.Hence any action against the appellant for misconduct could only be taken in accordance with the Rules, 1999 and not otherwise.
6- Part III of the Rules, 1999 provides for penalties.
Rule 5 categorized the minot 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 6 member of a Panchayat 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.”
Close reading of above paragraphs clearly reveals that the Rules of 1999 had been made applicable only to Panchayat Secretary and not to Panchayat Karmi and rightly so because the Panchayat Karmi is appointed by the Panchayat under the Scheme or in case of eventuality as postulated under Section 86 by the prescribed authority and the disciplinary powers are vested with the Panchayat as per Clause 7 of Scheme which says: “7.
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Writ Court clearly fell into patent error in construing an action against Panchayat Karmi by 7 Gram Panchayat as against Secretary which is not to be so in given facts of the present case.
Therefore, while setting aside the order dated 29.1.2013 passed in W.P.No.3441/2010 (s).the resolution dated 14.2.2008, affirmed in Appeal/Revision by Sub- Divisional Officer, Collector and the Commissioner by orders passed on 25.4.2009, 1.7.2009 and 10.3.2010 respectively, is revived.
Appeal is allowed, to the extent above.
(S.A.Bobde) (Sanjay Yadav) Chief Justice Judge Loretta