1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 9 TH DAY OF JANUARY, 2014 B E F O R E THE HON BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO.58968/2013 (LB-RES) BETWEEN: K.J. Basavaraj, S/o late Javare Gowda, Aged about 48 years, Working as Bill Collector, Belawadi Gram Panchayat, Taluk & District:Mysore- 570 018. (By Sri R.L. Patil, Adv.) PETITIONER AND: 1. State of Karnataka, Rep. by its Secretary to the Department of Rural Development & Panchayat Raj, Vidhana Soudha, Bangalore-560 001. 2. Chief Executive Officer, Zilla Panchayat, Mysore-570 018. 3. Executive Officer, Taluk Panchayat, Mysore-570 018.
2 4. Belwadi Gram Panchayat, Taluk & District: Mysore-570 108, Represented by its Panchayat Development Officer. RESPONDENTS (By Sri P.B. Bajentri, AGA for R1; Sri B.J. Somayaji, Adv. for R2 and R4;) R-3 served) This writ petition is filed under Article 226 of the Constitution of India praying to quash the impugned order dated 17/21.12.2013 passed by the 4 th respondent, marked as Annexure-B and quash offensive portion of the order dated 22.11.2013 passed by the 1 st respondent marked as Annexure-A to the WP. This petition coming on for preliminary hearing in B group this day, the Court made the following: ORDER Petitioner was selected and appointed on 21.11.1993 as a Bill Collector by the then Mandal Panchayat, Inkal. Said Panchayat having been bifurcated, on 01.04.1994, the Chief Executive Officer, Zilla Panchayat, Mysore, posted the petitioner to Belwadi Grama Panchayat, Taluk and District Mysore. The 1 st respondent having passed an order dated 22.11.2013, vide Annexure-A, in exercise of the power under S.43-A of the Panchayat Raj Act, 1993 (for short, the Act ) removing Smt. Bhagya Lokesh, an
3 elected member, from the membership of Belwadi Grama Panchayat, since the said order contains an observation as against the petitioner also, W.P.No.56613/2013 has been filed. Acting on the said order, the Panchayat Development Officer of Belwadi Grama Panchayat having passed an order of suspension dated 17/21.12.2013 placing the petitioner under suspension, this writ petition was filed on 23.12.2013, to quash the order of suspension, as at Annexure-B and also the offensive portion of order dated 22.11.2013, as at Annexure-A. 2. Sri. R.L. Patil, learned advocate for the petitioner submitted that the prayer for quashing of offensive portion of the order dated 22.11.2013, vide Annexure-A is not pressed, since for the very same relief, W.P.No.56613/2013 has been filed. Submission of the learned counsel is recorded. Since, Smt. Bhagya Lokesh has questioned the order, as at Annexure-A, in W.P.57143/2013, W.P.No.56613/2013 be tagged with W.P. No. 57143/2013.
4 3. Sri R.L. Patil, contended that by virtue of the provision in S.113 of the Act, the Appointing Authority of the petitioner being the Grama Panchayat, the Panchayat Development Officer was devoid of jurisdiction or power to suspend the petitioner, pending disciplinary enquiry and that the impugned order is a nullity. 4. Sri P.B. Bajentri and Sri B.J. Somayaji, learned advocates appearing for the respondents, did not dispute the fact that the Appointing Authority of the petitioner is the Grama Panchayat. They submitted that, if the impugned order is interfered with, the Grama Panchayat may be set free to take the decision in the matter of suspension or otherwise of the petitioner. 5. In view of the rival contentions and the record of the writ petition, the short question that arises for consideration in this case is, whether the Panchayat Development Officer of a Grama Panchayat, has the power to suspend an employee of the Panchayat?
5 6. The order impugned in this writ petition, as at Annexure-B, has been passed by the Panchayat Development Officer, Belwadi Grama Panchayat, Mysore Taluk. In order to decide the aforesaid question, it is necessary to notice the relevant statutory provision. Chapter-V of the Act is with regard to Staff of the Grama Panchayats. S.113 of the Act being relevant, the same reads as follows :- 113. Appointment and control of employees.- (1) Subject to the provisions of Sections 111 and 112 the Grama Panchayat may, with the prior approval of the Chief Executive Officer appoint other employees of the Grama Panchayat and pay their salaries from the Grama Panchayat fund: Provided that in making appointments the appointing authority shall reserve posts for the Scheduled Castes, the Scheduled Tribes and other socially and educationally backward classes of citizens in the same manner and to the same extent as is applicable for the recruitment to posts in the Sate Civil Services. (2) The Panchayat Development Officer, may, by order, fine or withhold the increment of any employee appointed by the Grama Panchayat. (3) The Grama Panchayat may reduce in rank, remove or dismiss any employee appointed by it.
6 (4) An appeal shall lie against an order passed by the Panchayat Development Officer under sub-section (2) to the Executive Officer and against an order passed by the Grama Panchayat under subsection (3) to the Chief Executive Officer. 7. Sub-S.(1) of S.113, makes it clear that the Grama Panchayat is the appointing authority of the petitioner. Sub-S.(2) enables the Panchayat Development Officer, by an order to impose minor punishments, such as fine or withholding of increment of any employee of the Grama Panchayat. Sub-S.(3) empowers the Grama Panchayat to impose major punishments such as reduction in rank, removal or dismissal of an employee appointed by it. As against the orders passed in Sub-S.(2) and (3) of S.113 of the Act, an appeal lies under Sub-S.(4) of S.113 of the Act. Power to suspend is not an implied term in an ordinary contract between master and servant and such a power can only be the creature either of a Statute governing the contract or of an express term in the contract itself, as has been held by the Apex Court in the case of BALVANTRAI RATILAL PATEL Vs. STATE OF MAHRASHTRA AIR 1968 SC 800.
7 8. From the said provision, it is clear that there is no power conferred upon the Panchayat Development Officer, to keep an employee of the Grama Panchayat under suspension, in contemplation of the disciplinary proceedings. Therefore, the order passed and the official memorandum issued, vide Annexure-B, on 17/21.12.2013 by the 4 th respondent, is without jurisdiction. Hence, the impugned official memorandum must be treated as a nullity. In the result, the writ petition is allowed in part and Annexure-B is quashed. Consequently, the petitioner is entitled to discharge the functions of the post of Bill Collector in the 4 th respondent Panchayat. However, it is open to the Belwadi Grama Panchayat, to take action against the petitioner, if any, in accordance with law. No costs. sac* Sd/- JUDGE