Decided on April 21,1966



Miabhoy, C.J. - (1.) Petitioner Ranchhodbhai Desaibhai Patel, prays for an order quashing an order dated 17th January 1962, passed by the Collector, Panchmahals, and for an order of his reinstatement to the post of the Secretary, Boru Group Panchayat, Taluka Kalol, on the same terms and conditions as governed his service prior to the aforesaid order dated 17th January, 1962. Petitioner also prays for an order directing respondents to pay him his salary from the date of his suspension till the date of his reinstatement. Respondent No. 1 is the Collector of Panchmahals and respondent No.2 is the State of Gujarat. The petition is under Arts. 226 and 227 of the Constitution of India.
(2.) Unfortunately, the facts which have been stated in the petition and in the affidavit in reply have not been correctly stated. Even though, some of the facts are taken from the documents which have been produced in the case, the facts as stated in the petition and the affidavit in reply are not borne out by those documents on the record. Even the dates of those documents and the exhibits at which they are produced have not been correctly stated in the petition. However, at the time of the argument, learned counsel on both sides were agreed as to the correct facts on the basis of which the present petition requires to be decided, and we propose first to state those facts. We are concerned in the present petition with the Boru Group Panchayat. That Panchayat was a corporate body, having perpetual succession, a common seal and a right to acquire and hold property. The Panchayat was, at the relevant time, governed by the Bombay Village Panchayats Act, 1933 (hereinafter called Act of 1933). Under S. 33 of the Act of 1933, the Panchayat was required to appoint a part-time secretary. It appears from the resolution dated 21st September 1956, that petitioner was appointed as a part time secretary with effect from 1st July 1956. It is not clear from the record as to who appointed petitioner to that post. But the appointment was sanctioned by the Panchayat by its aforesaid resolution dated 21st September, 1956. By that resolution, the salary of petitioner was fixed at Rs. 15, and it was further resolved that he should be sent for training for the post of secretary. On 17th March 1959, the Panchayat passed another resolution, by which it appointed petitioner as the permanent secretary with effect from 1st July 1958 and further resolved to petitioner increments as per the Act of 1933. It is common ground that petitioner was, during the tenure of his office as secretary, governed by the Bombay Village Panchayats Secretaries (Conditions of Service) Rules, 1948, framed by the Government of Bombay under Clause (El) of sub-section (1) of S. 108 of the Act of 1933. It is common ground that petitioner was at all relevant times subject to the conditions of service embodied in these rules. We shall have occasion to refer to these rules in detail at the proper time. It appears that, in the meantime, the Bombay Village Panchayats Act of 1958 (hereinafter called the Act of 1958) came to be passed on 29th of January, 1959. However, that Act came into force on 1st June 1959. Therefore, Mr. Sompura does not dispute the fact that on the date on which the Act of 1958 came into operation, petitioner was the permanent secretary of the Boru Group Panchayat. That Panchayat, after the coming into operation of the Act of 1958, retained its character as a body corporate with perpetual succession, a common seal and right to acquire and hold property. Section 60 of the Act of 1958 directs that there shall be a secretary for every Panchayat or a group of Panchayats. Sub-section (2) of S. 60 states that the secretary shall be appointed by the State Government or an officer or authority authorised by it in that behalf. That sub-section further states that the secretary shall be a wholetime Government servant and his salary and allowances shall not be a charge on the village fund. Sub-section (3) of S. 60 states that the qualifications, selection, appointment, powers, duties and conditions of service inter alia of such secretary shall be such as may be prescribed. Then comes subsection( 4). According to that sub-section, every secretary in the employ of a Panchayat on the date of the commencement of the Act of 1958, shall be deemed to have been appointed under S. 60 and shall, until other provision is made in accordance with the provisions of the Act of 1958, receive the salaries and allowances and be subject to the conditions of service to which he was entitled or subject on the date of the commencement of the Act of 1958. Then there is a proviso according to which, the State Government is given the power after giving a secretary deemed to have been appointed under sub-section (4), a notice to discontinue his service, if in the opinion of the Government, he was not necessary or suitable to the requirements of the Panchayat. The proviso further states that though this may be so, the secretary will be entitled to such leave, pension, provident fund, gratuity and other rights and privileges as he would have been entitled to take or receive on being invalidated out of service if he had continued in the employ of the Panchayat after the said date. The notice which the Government was empowered to give for discontinuance of service, was required to be given by the terms of the secretary's employment. However, before the Act of 1958 was enacted, a criminal prosecution was launched against petitioner on two allegations which came to be made against petitioner after an investigation was made in that regard by the Mamlatdar, Kalol and the Sub-Auditor, Halol Kalol Jambughoda Division after examining the books of account of the Panchayat for the years 1958-59 and 1959-60. The first charge against petitioner was that, although he had not paid that mount, he had debited a sum of Rs. 425 on 1st October 1958 in the accounts of the Panchayat as having been paid by him to the Sarpanch and that, he paid the aforesaid amount to the Sarpanch only on 15-5-60 and that, he produced the voucher in connection with that payment only on 31st of May, 1960. The second charge against him was that he had debited the rent payable in regard to the office of the Panchayat as having been paid by him on 22nd of September, 1959, although he had not paid the same and that, he produced the relevant voucher of that payment only on 31st of May, 1960. Petitioner, however, was acquitted of those charges by the Criminal Court. The acquittal was made on the ground of benefit of doubt. In the course of his judgment, the learned Magistrate observed that petitioner was an unreliable person and that, the conduct and movements of petitioner were such as might turn out to be dangerous for service in Panchayat. This judgment was delivered on 15th May, 1961. Thereafter, on 28th December, 1961, the Collector of Panchmahals wrote a letter to petitioner in which after reciting the aforesaid two charges and the observations made by the learned Magistrate he stated that the services of petitioner as the secretary could not be continued and intimated to petitioner that, an order would be passed relieving him of his duties as the secretary after one month from the date of the receipt of the aforesaid notice. Both in the petition and in the affidavit in reply, it has been stated that, by the aforesaid letter, petitioner was called upon to show cause why he should not be removed from service. Learned counsel on both sides now admit that, in fact, this was not so. By the aforesaid letter, only an intimation was given to petitioner of the intention of the Collector that he would be relieved of his duties after one month after the date of the receipt of the notice. This notice was received by petitioner on 8th January, 1962. However, before the expiry of one month, the Collector passed an Impugned order on 17th January, 1962, discharging petitioner from the services as the secretary on account of the aforesaid misbehaviour, with effect from 8th February 1962. This order was received by petitioner on 15th February 1962. Aggrieved by this order, petitioner filed the present petition on 29th August, 1962. Petitioner has challenged the impugned order on two grounds. The first ground is that the impugned order was bad because he was not given a reasonable opportunity to show cause against the passing of the aforesaid order under Art. 311 of the Constitution of India. Secondly, he attacks it on the ground that no enquiry was made in regard to his alleged misconduct, as required by the rules governing the conduct, discipline, etc. Of Government Servants. One U.C. Buch, Under Secretary to the Government, Panchayats and Health Department, Ahemdabad, has filed an affidavit in reply. In that affidavit, the deponent has raised certain preliminary objections. On the merits, the deponent has stated that, the impugned order was not an order of removal or dismissal, but that, it was "a pure and simple case of termination of services". The deponent has also denied that petitioner was entitled to the protection of Art. 311 of the Constitution. According to the deponent, petitioner was not holding a civil post, nor was he a member of any service of the State. As regards the alleged violation of the rules governing the conduct, discipline etc., of Government servants, the deponent has denied that any such breach was committed.
(3.) On the aforesaid pleadings, at the time of the hearing, Mr. C.C. Patel learned counsel for petitioner, at the time of arguments stated that it was not necessary for us to consider the question as to whether petitioner was or was not entitled to the protection of Art. 311. He contended that under R. 25 of the Bombay Village Panchayats Secretaries (Conditions of Service) Rules, 1948 (hereinafter called the rules) applicable to him, petitioner was entitled to an order for quashing the impugned order of the Collector as a matter of course. The arguments of Mr. Patel were entirely addressed to us on this basis. For that purpose what would have to be ascertained by this Court in the first instance would whether the impugned order was one of removal or dismissal and even if this Court came to the conclusion that this order was of a character of one of the two kinds, whether on the pleadings petitioner was entitled to raise the question of the breach of that particular rule and as to what exactly the legal consequence of a breach of that rule would be. If petitioner were held not to be a servant of the State at the relevant time, then, the question would arise whether this Court had jurisdiction to give any relief to petitioner under its extraordinary jurisdiction in regard to a State servant, and even if it was so, the further question would arise as to whether the tenure of the post of petitioner was such that his services could or could not be terminated on giving of a reasonable notice on the basis that there was only a contract of service, between the petitioner and the Panchayat. Mr. Sompura contends that, if petitioner were to be permitted to challenge the impugned order on the aforesaid new ground, then respondents will be considerably prejudiced inasmuch as they will be precluded from raising the points indicated above which otherwise they would have done if the impugned order had been challenged on the ground of the breach of R. 25. In addition to this, Mr. Sompura, says that the Collector is entitled to discontinue the services of petitioner under the proviso to sub-section (4) of S. 60 of the Act of 1958 buy that proviso has not been pleaded in the present case because there is no reference to R. 25. Mr. Patel points out that under that proviso, the power of discontinuance of service is vester only in the State Government and that, that proviso will be of no avail to the Collector. Mr. Sompura contends that under Section 182 of the Act of 1958, the power of the State Government can be delegated to subordinate authority and that if R. 25 had been pleaded, respondents would have pleaded, the proviso and would have also shown that the Collector had been empowered to exercise the power vested in the State Government under the aforesaid proviso. In our judgment, there is considerable force in the argument advanced by Mr. Sompura. The affidavit in reply was filed as far back as 9th August 1965. No amendment was asked for in the petition to bring out that the impugned order was being challenged under the aforesaid rule or any of the rules. It is true that there is a vague ground, being ground No. 4, in which it has been stated generally that petitioner had been dismissed without any enquiry being held against him and thus the order deserves to be set aside. There is also a similar general ground No. 7 in which it is stated that the order of dismissal was without jurisdiction and bad in law. But, in our judgment, these vague grounds could have hardly given any idea to respondents that petitioner had in mind the aforesaid R. 25 or any of the other rules. Under the circumstances, in our judgment, the present petition should be considered only on the two aforesaid grounds on which the same is based, and if petitioner intends to challenge the impugned order on any of the other grounds, which he seeks now to raise in this Court, he may have recourse to such other proceedings as may have recourse to such other proceedings as he may be advised in order to have those other points decided in the proper forum. Therefore, we propose to confine our attention only for the two specific grounds on which the petition has been based and on which the impugned order has been challenged by the petitioner.;

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