Rajiv Sharma, J.
1. This petition has been filed against orders dated 6.11.2001 (Annexures P-19 and P-20) as well as order dated 8.1.2002 (Annexure P-24) and orders dated 21.3.2002 and 23.3.2002 (Annexures P-31 and P-32),
2. The brief facts necessary for adjudication of this petition are that the Rural Department of the Government of Himachal Pradesh has issued notification dated 26.6 1999 whereby 50% of the Gram Panchayats notified by the Government could appoint one Gram Panchayat Sahayak on the following conditions:
(i) Candidates will have minimum educational qualification of Matriculation.
(ii) Candidate will be resident of the same Gram Panchayat.
(iii) For this work Gram Panchayat will appoint such person who has knowledge of work of that area and he should not consider it as a source of income.
(iv) Minimum age limit will be 18 years.
(v) Such person should be appointed as Panchayat Sahayak who should be able to spare time for doing work of that Panchayat.
3. The notification has been placed on record as Annexure P-2. It is stipulated in this notification that for appointment to the post of Gram Panchayat Sahayak, concerned Gram Panchayat will invite applications from eligible candidates and this information will be displayed on the notice board of the Gram Panchayat. It is stipulated in para-2.7 of the notification that appointment of Gram Panchayat Sahayak will be done for one year in the first instance which will be renewed from time to time by the Gram Panchayat concerned by looking at the working ability of the candidate. Para-2.8 provides that Gram Panchayat will have complete administrative control on the Gram Panchayat Sahayak and for any lackness/ irregularity etc. in the work disciplinary action will be taken against the Gram Panchayat Sahayak. It is further stipulated in para-2.8 of the notification that in case the work of Gram Panchayat Sahayak is not found satisfactory, then his services could be terminated by Gram Panchayat after giving him personal hearing. Relevant paras-2.7 and 2.8 are reproduced below:
2.7 Appointment of Gram Panchayat Sahayak will be done for one year in the first instance which will be renewed from time to time by the concerned Gram Panchayat after looking at the working ability of the candidate.
2.8 Gram Panchayat will have complete administrative control on the Gram Panchayat Sahayak. For doing any lackness/irregularity etc. in the work disciplinary action will be taken against him by the Gram Panchayat. In case the work of Gram Panchayat Sahayak is not found satisfactory then his services can be terminated by Gram Panchayat after giving him personal hearing.
4. In sequel to Annexure P-2, respondent No. 7 was appointed as Panchayat Sahayak in Gram Panchayat, Bat Kalan. The respondent No. 7 was also required to enter into agreement with the petitioner-Gram Panchayat. Pursuant to appointment order dated 14.1.2000 (Annexure P4) the petitioner-Gram Panchayat had entered into agreement with respondent No. 7. The petitioner-Gram Panchayat had issued memorandum to respondent No. 7 on 24.10.2000 whereby he was directed to be present in the Panchayat Office from 10.00 a.m. to 1.00 p.m. instead of 2.00 to 5.00 p.m.
5. The petitioner-Gram Panchayat terminated the services of respondent No. 7 as Gram Panchayat Sahayak vide resolution No. 3 dated 7.11.2000 (Annexure P-9).
6. Feeling aggrieved by the resolution dated 24.10.2000 and subsequent resolution dated 7.11.2000, the respondent No. 7 filed revision under Section 138(1) and (2) of the H.P. Panchayati Raj Act, 1994. The Sub Divisional Officer (Civil), Una on 27.11.2000 stayed the operation of resolution dated 7.11.2000 till further orders. The S.D.O. (C), Una passed orders in revision No. 4 of 2000 and revision No. 5 of 2000 on 6.11.2001. The Sub Divisional Officer (Civil), Una had suspended the execution of resolutions dated 24.10.2000 and 7.11.2000. The petitioner-Gram Panchayat instead of implementing the orders passed by the Sub Divisional Officer (Civil), Una has sent reply to him on 28.11.2001. The gist of the reply filed before the Sub Divisional Officer (Civil), Una was that it was not necessary to hear respondent No. 7 before passing of the resolutions terminating his services. The Gram Panchayat has filed appeal before the Deputy Commissioner, Una against the order dated 6.11.2001 vide Annexure P-22. The Deputy Commissioner, Una while hearing the application under Order 41 Rule 5 staying the implementation of the orders of Sub Divisional Officer (Civil) Una dated 6.11.2001 had refused to grant interim relief to the petitioner-Panchayat. The Block Development Officer, Haroli has called upon the petitioner-Gram Panchayat to act as per decision of the competent authority/Court vide communication dated 4.3.2002. The Deputy Director, Panchayati Raj has sent letter to the Pradhan of the petitioner-Gram Panchayat on 1.3.2002 in reference to his letter dated 17.12.2001 informing him that if the Panchayat was not satisfied with the work of Ashok Kumar, Panchayat Sahayak then necessary action may be taken as per instructions contained in letter dated 16.6.2001. The copy of this letter is marked as Annexure P-30. The copy of the notification dated 16.6.2001 was also enclosed with Annexure P-30. The same is reproduced below for better appreciation of the facts:
Under the scheme for Panchayat Sahayaks in Para-2.7, it has been mentioned that the appointments of Panchayat Sahayaks on contractual basis will be for a period of one year which may be renewed from time to time subject to the satisfaction of Gram Panchayat on the basis of candidate's performance. However, Para-2.8 provides that such services may be terminated if performance of Panchayat Sahayak is not up to the mark after giving him/her an opportunity of being heard.
These provisions do not imply that the services of a Panchayat Sahayak can be terminated by the Gram Panchayat without any reason. These instructions mean that the Panchayat Sahayak's contract should normally be renewed every year. If the performance of the Panchayat Sahayak is not upto the mark then the GPVA who is the main controlling authority for Panchayat Sahayak will have to record in writing giving full reasons justification as to why the performance of Panchayat Sahayak is not upto the mark. Thereafter the matter should be placed before the Gram Panchayat for its consideration and if the Gram Panchayat agrees with the views of GPVA, the Panchayat Sahayak should be served with a notice giving him an opportunity of being heard by the Panchayat Pradhan in person. Thereafter if it is considered that the Panchayat Sahayak is to be removed, the contract may be terminated in accordance with the provisions of the said contract as after giving one month's notice.
Normally the one year contract should be renewed for another year before the expiry of the contract or on the same day on which the contract expires. In case certain Panchayats have not renewed the contract inadvertently and have also not removed the Panchayat Sahayak, and the Panchayat Sahayak continues to perform his duties then it would be assumed that the Gram Panchayat intends to renew the contract and contract will have to be renewed ex-post facto from the next day after the day on which previous contract expired. If the Panchayat does not want to renew the contract then it may initiate its action at least 45 days before expiry of the contract period so that the opportunity of being heard as well as one month's prior notice can be given to the Panchayat Sahayak.
This may be brought to the notice of all the Gram Panchayats as it has come to the notice of the Department that the Gram Panchayats are arbitrarily removing the services of Panchayat Sahayaks leading to unnecessary litigation. It may be further noted that violation of these instructions will be viewed seriously.
7. The Sub Divisional Officer (Civil), Una has also sent communication to the District Panchayat Officer, Haroli on 21.3.2002. In sequel to letter dated 21.3.2002, the District Panchayat Officer had sent communication to the Block Development Officer on 23.3.2002 to ensure implementation of orders dated 6.11.2001 passed by the Sub Divisional Officer (Civil), Una in revision under Section 138(1) and (2) of the Panchayati Raj Act, 1994.
8. Mr. R.K. Gautam, Senior Advocate with Mr. Naveen Bhardwaj, Advocate has submitted that the Gram Panchayat was not bound to implement the order dated 6.11.2001 passed by the Sub Divisional Officer (Civil), Una whereby execution of resolutions dated 24.10.2000 and 7.11.2000 was suspended.
9. The learned Advocate General has supported the orders passed by the competent authorities from time to time. Mr. Ajay Sharma, Advocate appearing on behalf of respondent No. 7 has strenuously argued that the services of the petitioner have been terminated in violation of the Scheme notified on 26.6.1999 and the Gram Panchayat was bound to implement the orders passed by the Sub Divisional Officer (Civil) dated 6.11.2001.
I have heard the parties and perused the record.
10. The appointment of respondent No. 7 was made on 14.1.2000 on the basis of Annexure P-2 dated 26.6.1999. It is evident from a combined reading of paras-2.7 and 2.8 of notification dated 26.6.1999 that the Gram Panchayat Sahayak's appointment could be renewed from time to time by the concerned Gram Panchayat after looking at the working ability of the candidate and if the conduct of the Gram Panchayat Sahayak was not found satisfactory then his services could be terminated by the Gram Panchayat after giving him personal hearing. Admittedly, no notice has ever been issued to respondent No. 7 by the petitioner-Gram Panchayat before terminating his services as Gram Panchayat Sahayak. The respondent No. 7 has been called upon only vide Annexure P-8 to be present in the Panchayat office from 10.00 a.m. to 1.00 p.m. instead of 2 to 5 p.m. The resolution dated 7.11.2000 has also been passed without hearing respondent No. 7. It was incumbent upon the Gram Panchayat as per para-2.8 to afford him personal hearing. The respondent No. 7 has neither been issued show-cause notice nor he has been afforded personal hearing before passing resolution dated 7.11.2000.
11. The order passed by the Sub Divisional Officer (Civil), Una on 6.11.2001, is in accordance with law. It has come in the order of Sub Divisional Officer (Civil), Una, dated 6.11.2001 that no opportunity of being heard was afforded to respondent No. 7 and consequently, he has suspended the execution of resolutions dated 24.10.2000 and 7.11.2000 respectively. Surprisingly, in reply to order dated 6,11.2001, the Gram Panchayat has again reiterated that it was not necessary to hear the respondent No. 7 before terminating his services as Gram Panchayat Sahayak. It will be pertinent to note that the Sub Divisional Officer (Civil), Una has also granted interim relief to respondent No. 7 on 27.11.2000. The interim relief has been granted to respondent No. 7 during the pendency of one year after the appointment of respondent No. 7. The Deputy Commissioner, Una in appeal has refused to grant interim relief to the petitioner-Gram Panchayat as is evident from order dated 8.1.2002.
12. The plea of Mr. R.K. Gautarn that the Gram Panchayat was not bound to implement the orders of Sub Divisional Officer (Civil), Una is untenable. Once the orders have been passed by the competent authority exercising the jurisdiction under the relevant provisions of the Himachal Pradesh Panchayati Raj Act, 1994 and the Rules framed thereunder, the same were to be implemented by the Gram Panchayat to curb the tendency of the Gram Panchayat to terminate the services of the Panchayat Sahayak. Mr. Ajay Sharma on the basis of the reply filed by the respondents-State and more particularly, on the basis of notification dated 20th August, 2001 has strenuously argued that if his client was permitted to be continued he could also improve his qualifications entitling him to get higher honorarium. There is substance in the submission of Mr. Ajay Sharma. In the totality of the circumstances, the act of the Gram Panchayat to terminate the services of respondent No. 7 was illegal. The petitioner-Gram Panchayat has defied the orders passed by the competent authority issued under the Himachal Pradesh Panchayati Raj Act, 1994 and the Rules framed thereunder. The respondent No. 7 has neither been issued any show-cause notice nor has he been heard in person as per Annexure P-2 before terminating his services.
13. M. Mr. Ajay Sharma had submitted that in view of the peculiar facts and circumstances of the case, this Court may direct the reinstatement of respondent No. 7. Mr. R.K. Gautam, Senior Advocate submitted that in this petition the relief cannot be granted to respondent No. 7. This Court is of the opinion that to do complete justice, a direction can be issued to the petitioner-Panchayat to reinstate respondent No. 7 as Gram Panchayat Sahayak.
14. The Hon'ble Supreme Court has held in B.C. Chaturvedi v. Union of India and Ors. : (1996)ILLJ1231SC , as under:
The first of these relates to the power of the High Court to do 'complete justice', which power has been invoked in some cases by this Court to alter the punishment/penalty where the one awarded has been regarded as disproportionate, but denied to the High Courts. No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it would be wrong to think that other Courts are not to do complete justice between the parties. If the power of modification of punishment/penalty were to be available to this Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach this Court, which may, inter alia, be because of the poverty of the person concerned. It may be remembered that the framers of the Constitution permitted the High Courts to even strike down a parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/penalty, on such a case being made out. What a difference! May it be pointed out that Service Tribunals too, set up with the aid of Article 323-A have the power of striking down a legislative act.
It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh case that the High Courts too can exercise power of review, which inheres in every Court of plenary jurisdiction. I would say that power to do complete justice also inheres in every Court, not to speak of a Court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter.
15. The Hon'ble Supreme has held in State of Punjab and Ors. v. Bakshish Singh : (1999)ILLJ1208SC , that in rarest of rare case the Court can take assistance of Order 41 Rule 33 to grant relief to the non-appellant also. Their Lordships of the Hon'ble Supreme Court have held as under:
It will thus be seen that the trial Court as also the lower appellate Court had both recorded the findings that the period of absence from duty having been regularised and converted into leave without pay, the charge of absence from duty did not survive. Once it was found as a fact that the charge of unauthorised absence from duty did not survive, we fail to understand how the lower appellate Court could remand the matter back to the punishing authority for passing a fresh order of punishment. In the fact of these findings, specially the finding of the trial Court that proper opportunity of hearing was not given and the signatures of the respondent were obtained under duress during departmental proceedings which have not been set aside by the lower appellate Court, we are of the view that there was no occasion to remand the case to the punishing authority merely for passing a fresh order of punishment.
In this case, what we propose to do would be fully in consonance with the provisions of Order XLI Rule 33 of the Code of Civil Procedure, 1908 which provides as under:
Order XLI - Appeals from Original Decrees
33. Power of Court of Appeal.-The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
Provided that the appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
This provision gives very wide power to the appellate Court to do complete justice between the parties and enables it to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any appeal or cross-objections.
The discretion, however, has to be exercised with care and caution and that too in rare cases where there have been inconsistent findings and an order or decree has been passed which is wholly uncalled for in the circumstances of the case. The appellate Court cannot, in the garb of exercising power under Order XLI Rule 33, enlarge the scope of the appeal. Whether this power would be exercised or not would depend upon the nature and facts of each case.
The powers of the appellate Court are also indicated in Section 107 of the Code of Civil Procedure which provides that the appellate Court shall have the same powers as are conferred on the original Court. If the trial Court could dispose of a case finally, the appellate Court could also, by virtue of Clause (a) of Sub-section (1) of Section 107, determine a case finally. In R.S. Lala Praduman Kumar v. Virendra Goyal, it was held that the appellate Court could even relieve against forfeiture in a case under the Transfer of Property Act, 1882. This too was based on the principle that the power which was available to the original Court, could be exercised by the appellate Court also.
Applying the above principles to the instant case, it will be noticed that the trial Court recorded a categorical finding of fact that a proper opportunity of hearing was not afforded to the respondent in the departmental proceedings and that his allegation that his signatures on certain papers during those proceedings were obtained under duress, was not controverted as the State of Punjab had led no evidence in defence. The trial Court also recorded a finding that unauthorised absence from duty having been regularised by treating the period of absence as leave without pay, the charge or misconduct did not survive. It was with this finding that the suit was decreed. The lower appellate Court confirmed the finding that since the period of unauthorised absence from duty was regularised, the charge did not survive but it did not say a word about the finding relating to the opportunity of hearing in the departmental proceedings. Since those findings were not specifically set aside and the lower appellate Court was silent about them, the same shall be treated to have been affirmed. In the face of these findings, it was not open to the lower appellate Court to remand the case to the punishing authority for passing a fresh order of punishment. The High Court before which the second appeal was filed by the State of Punjab, did not advert itself to this inconsistency as it dismissed the appeal summarily, which indirectly reflects that it allowed an inconsistent judgment to pass through its scrutiny.
16. The up-shot of the above discussion is that there is no merit in the writ petition and the same is accordingly dismissed with costs quantified at Rs. 3,300/-. The petitioner-Panchayat is directed to reinstate the respondent No. 7 as Gram Panchayat Sahayak within three weeks from today. The respondent No. 7 will be entitled to all the consequential benefits, i.e. arrfears of salary, seniority etc.