ORDER
Rajendra Menon, J.
1. The petitioner by the present petition has challenged the order and resolution passed by the respondent Panchayat whereby the services of the petitioner as a Panchayat Karmi has been terminated. Initially, the petition was filed challenging the order Annexure P-1 passed at the instance of the Collector taking away the powers of the Secretary from the petitioner. Subsequently, during the pendency of the petition, as the petitioner's appointment as a Panchayat Karmi itself was cancelled, the petition has been amended and the aforesaid order has also been challenged.
2. It is the case of the petitioner that he was appointed as Panchayat Karmi in pursuance to the Panchayat Karmi Yojna formulated by the State Govt. as contained in Annexure P-2, under the provisions of Clause 2.4 of the said policy on being appointed as a Panchayat Karmi such employee is deemed to be a Secretary of the Panchayat also. After he was appointed as a Panchayat Karmi as per the aforesaid provisions he was also declared as a Panchayat Secretary in view of the aforesaid provisions and as his appointment as Panchayat Secretary is by the State Govt., the Collector has no jurisdiction or authority to pass the impugned order Annexure P-1 taking away the powers of the Panchayat Secretary from the petitioner. That apart, it is submitted that the services as a Panchayat Karmi has been terminated by the orders of the Panchayat and for this purpose no enquiry was conducted or proper opportunity of defence was given to the petitioner.
3. On merit Shri M.P.S. Raghuvanshi, learned Counsel for the petitioner taking me through various documents which have been brought on record like Annexures R-7 to R-9, R-12 and R-13 submits that the enquiry was in fact against the Sarpanch and without giving any opportunity of hearing to the petitioner, his services have been terminated. This according to the learned Counsel was done without conducting proper enquiry and without giving him any opportunity and therefore is illegal.
4. Refuting the aforesaid submissions Shri K.N. Gupta, learned Govt. Advocate submits that as the petitioner is a Panchayat Karmi and he has an efficacious alternative remedy of filing an appeal under the provisions of the Madhya Pradesh Panchayats (Appeal and Revision) Rules, 1995, the present petition is not maintainable. It is submitted that disputed question of facts are involved and in view of the existence of an alternative statutory remedy petition is not maintainable. That apart, it is submitted that proper opportunity was accorded. Show-cause notice was issued to the petitioner. He was given opportunity of hearing and submit his reply thereafter the matter was placed before the Gram Panchayat and it was only on the basis of resolution of the Panchayat that the services of the petitioner were terminated. It is his case that the petitioner has committed serious irregularities and embezzlement while functioning as a Panchayat Secretary which is apparent from the records. That being so, this is not a fit case warranting interference by this Court in exercise of its writ jurisdiction.
5. Inviting my attention to a judgment of the Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., reported in AIR 1999 SC 22, Shri Raghuvanshi submits that as the order impugned Annexure P-1 has been passed by an incompetent person and the same being without any jurisdiction, the petition can be entertained by this Court.
6. I have heard learned Counsel for the parties.
7. Perusal of the records indicate that there were serious allegations against the petitioner. The contention of Shri Raghuvanshi that the complaint Annexure R-1 was against the Sarpanch and the entire enquiry was conducted against the Sarpanch and there was nothing against the petitioner, seems to be misconstrued on a close scrutiny of these documents. Even though in the subject mentioned in most of these documents it is referred to as enquiry against the Sarpanch but a perusal of the contents of most of these documents indicate that the irregularities contained therein were with regard to misuse of the funds allotted to the Panchayat for various development activities. Number of complaints, affidavits and statements of villagers have been filed which goes to indicate that in the said Panchayat various irregularities are being committed. However, in the Panchnama Annexure R-5-B it has been indicated that the Sarpanch is an Adivasi lady and it is the petitioner in the capacity of Secretary of the Panchayat who has been doing the entire work. The documents indicate that the allegations and findings are that the petitioner being an influential person and a member of an influential family has misused his office and as the Sarpanch was an Adivasi workmen, the petitioner is held to be instrumental in committing the irregularities. That apart, action has also been taken for removal of the Sarpanch on the basis of these reports. The aforesaid documents entirely indicate that series of irregularities have been committed and on the basis of the above, show-cause notice was issued to the petitioner but the petitioner did not submit any reply. The entire matter was placed before the Panchayat and on the basis of resolution of the Panchayat action was taken.
8. The aforesaid is being considered to assess the question with regard to interference if any, to be made in the present petition. It is thus clear that there are serious allegations against the petitioner. He was issued with show-cause notice, opportunities were given to him and it is only on the basis of the resolution passed by the Panchayat that action has been taken. Even though Shri M.P.S. Raghuvanshi, learned Counsel has questioned the genuineness of the said resolution the fact remains as to whether in the light of the serious irregularities with regard to misappropriation of funds alleged against the petitioner, is this a fit case where interference can be made or the petitioner should be relegated to pursue the remedy available to him under the Appeal and Revision Rules as prima facie there seems to be disputes with regard to factual aspects of the matter. Even the question of competency of the Collector to issue the certificate is a ground which can be raised by the petitioner before the Appellate or Revisional Authority.
9. The law laid down by the Supreme Court and relied too by the learned Counsel for the petitioner in the case of Whirlpool (supra) may not apply in the facts and circumstances of the present case. This is not a case where it can be said that the order impugned have been passed by an authority which does not have any jurisdiction or has acted by usurping jurisdiction without any legal foundation. The dismissal of the petitioner as Panchayat Karmi has been done on the basis of resolution of the Panchayat. The provisions of the rule, procedure for removal of Panchayat Karmi as contained in Annexure P-4 indicates that the Panchayat is competent to remove a Panchayat Karmi. That being so, the law laid down in the case of Whirlpool (supra) is not applicable. That apart, it has been the consistent view of this Court that action taken under the Panchayat Raj Adhiniyam of 1993 and orders passed thereunder are subjected to Appeal and Revision Rules under the Madhya Pradesh Panchayats (Appeal and Revision) Rules, 1995,
10. In view of the consistent view taken by this Court in this regard it is to be held that the petitioner has an efficacious remedy of filing an appeal or revision under the Rules of 1995. In this regard reference can be made to a judgment of this Court in the case of Panchhu Singh Watia and Ors. v. State of M.P. and Ors., reported in 2002(1) Vidhi Bhasvar 55.
11. As indicated hereinabove, the services of the petitioner as a Panchayat Karmi has been terminated by the Panchayat on the basis of the powers conferred on the Panchayat. That being so, the question of removal of the petitioner as a Secretary by the Collector losses its significance for the present because a person has to be a Panchayat Karmi first and then only he gets a right to be entrusted with the duties of a Secretary. Admittedly there are allegations against the petitioner and this is not a case where action has been taken without opportunity or show-cause notice. Prima facie, it seems that action has been taken by issuing the show-cause notice and giving opportunity of hearing to the petitioner.
12. Considering the case in its totality and taking in view the seriousness of the allegations levelled against the petitioner, I am not inclined to interfere in the matter in exercise of the limited jurisdiction under Article 226 of the Constitution. It would be appropriate to direct the petitioner to file an appropriate appeal or revision in accordance with the Rules of 1995 and raise all these grounds wherein the competent authority deciding the appeal or revision would be in a better position to go into each and every aspect of the matter and record its findings.
13. Accordingly, the petition is dismissed. As the petitioner was removed during the pendency of the present petition and the matter was pending before this Court, the petitioner is granted liberty to present a properly constituted appeal or revision before the competent authority as per the provisions of Madhya Pradesh Panchayats (Appeal and Revision) Rules, 1995 and on such appeal or revisions being filed within a period of 30 days from the date of receipt of certified copy of this order, the said authority shall proceed to dispose of the same in accordance with law.
14. It is made clear that this Court has not expressed any opinion on the merits of the case. The discussions in the preceding paragraphs with regard to the allegations against the petitioner and the contents of the documents are only for the purpose of consideration as to whether interference is called for in the present petition or not. The competent authority without being influenced by the aforesaid shall proceed to determine the question independently after giving due opportunity to all concerned.
Petition is accordingly dismissed.