Mahedra Bhushan Sharma, J
1. This is a plaintiff's second appeal arising out of a suit Mo. 99 of 1972 for declaration and permanent injunction.
2. The plaintiff was selected by the Panchayat Samiti and Zila Parishad Service Selection Commission, and was appointed as a Priminy School Teacher in the Government Primary School. Roopahedi, Panchayat Samiti, Chaksu, District Jaipur, by the Panchayat Samiti Chaksu. He joined his post on August 12, 1961. After having passed B S.T.C. Examination in the year 1961, he was promoted to Matric Trained Grade in the year 1961 Grade-III-Teachers on September 11, 1961. He also worked as Head Master in Primary Schools, and his Service Book was maintained by the concerned B.D.O (Block Development Officer) of the Panchayst Samiti. When the Plaintiff was posted in Primary chool, Rampurabas Goner as Primary Teacher in the Year 1970, he from time to time applied for medical leave on medical grounds. He had earned 120 days medical leave on November 19, 1970. His leave was neither sanctioned nor rejected by the competent authority, but he was suspended with effect from December 1, 1970. A charge-sheet was served on him on January 1, 1971 and he was dismissed from service. The plaintiff filed a suit for declaration that the dismissal order was illegal, as he was not granted opportunity to defend himself, and it was passed in violation of the principles of natural justice, and that no second notice was give to him under Article III (2) of the Constitution of India. The suit was contested by the respdendents, and the case of the plaintiff that he ever suffered from Typhoid was contested. The case set up in the written statement was that the plaintiff was seen by the B.D.O. on November 28, 1970 when he was on way to Jaipur. The The Plaintiff was asked to explain his absence without the permission, which he could not explain, and as such he was guilty of remaining absent wilfully without leave. It was also stated that the plaintiff appeared on November 27, 1970, and he was relieved from duty on that day with effect from November 25, 1970. The plaintiff was required to report regularly in the office after suspension, but he did not report except on December 3, 4 and from December 29, 1970 to January 4, 1971. His leave application was also not sanctioned. A plea that the suit was barred by limitation and that the Court had no jurisdiction to entertain the suit was also taken.
3. The learned trial Court on the pleadings of the parties framed the following issues:
(1) Was any show cause notice served on the plaintiff before dismissal?
(2) Whether the impugned dismissal order of Mehtab Ali Teacher is illegal, inoperative and invalid.?
(3) Whether the plaintiff is entitled to re-instatement with full back salary ?
4. In all three witnesses were examined for the plaintiff, and on behalf of the defendant four witnesses were exanined. The learned trial Court under its judgment and decree dated July 3, 1976 holding that before dismissal notice to inflict the proposed punishment should have been given to the plaintiff, which was not given, held that the dismissal of the plaintiff was contrary to Article 311 of the Constitution of India, and as such is null and void. The B.D.O., Panchayat Samiti, Chaksu, filed an appeal against the judgment and decree of the trial Court, and the District udge, Jaipur District, Jaipur allowed the appeal, set aside the judgment and decree of the trial Court, and the suit of plaintiff was dismissed. In view of the learned District Judge, Article 311 of the Constitution of India is only applicable to a Civil Servant holding a post under the State, and it does not apply to the Local-Self Government. Thus, the learned District Judge held that it was not necessary to give any second show cause notice and dismissed the suit, as already stated eariler.
5. A two fold submission has been raised by the learned Advocate for the appellant to the effect; (1) that the appellant was a member of the 'Service' as defined in Rule 2 (i) of the Rajasthan Panchayat Samiti and Zila Parishad Service Rules, 1959 (hereinafter referred to as the Rules), under which 'Service' means the Rajasthan Panchayat Samiti & Zila. Parishad Service., and as such he was holding a civil post under the State and Article 311 of the Constitution was applicable ; and, (2) Under Rule 7 (10) of the Rajasthan Panchayat Samities and Zila Parishad Service, Punishment and Appeal Rules, 1961, (for Short Rules of 1961), a notice stating the action proposed to be taken in disciplinary proceeding on the report of the Enqiry Officer was not given to the plaintiff, and therefore, the dismissal from service of the plaintiff is in contravention of the aferesaid rule. In reply, the contention of the learned Advocate for the respondents is that the person serving under the Panchayat Samiti is not the holder of a civil post under the State, and therefore, Article 311 of the Constitution of India will not apply, and that notice stating the action proposed to be taken was given to the plaintiff, and therefore, Rule 7(10) of the Rules of 1961 has been complied with.
6. The first question, therefore is as to whether the plaintiff being a teacher of the Panchayat Samiti is a holder of the Civil post under the State? 'Civil Post' as given under Article 311 of tie Constitution of India has not been defined anywhere. The question, whether the. Panchayat Service constituted under Section 203(1) of Gujarat Panchayat Act (Ct No. 6 of 1962) was a civil service under the State or not arose for consideration before the High Court of Gujarat in G.L. Shelda v. The State of Gujarat (1967) 8 Guj. L.R. 833. Bhagwati J., as his Lordship then was observed as under:
When an order of allocation is made under Section 206, the Government Servant who is allocated does not cease to be a State Servant and become a servant of the Panchayat. There is no termination of his service as a State Servant, and the only effect of the order of allocation is that whereas, prior to the order of allocation, he was a member of one civil service of the State, namely, the State Service, he is now after the order of allocation, a member of another civil service of the State, namely, the Panchayat Service. He is merely transferred from one civil service of the State to another. The Panchayat Service contemplated under the Act is as much a civil service of the State as the State Service. The Legislature by enacting the Act provided for the establishment of the Panchayat Organisation of the State and for the efficient administration of the Pancheyat Organisation, particularly in view of the fact that a large part of service personnel would be drawn from different sources and would therefore, he heterogeneous in composition with widely different scales of pay and conditions of service, the Legislature felt that it would be desirable to have a separate civil service of persons employed in the discharge of functions and duties of Panchayats with uniform scales of pay and uniform conditions pf service and, therefore with that end in view that Legislature provided for constitution of the Panchayat Service. All the provisions of the Act relating to the Panchayat Service point unmistakeably and inevitably to one and only one conclusion, namely, that the Panchayat Set vice is one single service with the State as the master.
7. Their Lordships of the Supreme Court in Mathura Das v. Hanshaw : 1SCR144 considered the question as to whether the Panchayat Service constituted under the Gujarat Panchayats Act is a civil service of the State. Dealing with the various provisions of the Gujarat Panchayat Act, their Lordships observed. 'The administration of a service under a State involve broadly the following functions: (i) The organisation of the Civil service and the determination of the remuneration, conditions of service, expenses and allowances of persons serving in (ii) The manner of admitting persons to civil service; (iii) exercise of disciplinary control over members of the service and power to transfer, suspend, remove or dismiss them in the public interest as and when occasion to do so arises. In the instant case, the Panchayat Service is constituted by the Panchayat Act and the State Government is empowered to make orders and Rules regarding its organisation and management. It is true that in Section 203 of the Panchayat Act, it is stated that the Panchayat Service shall be distinct from the State Service. Having regard to the broad features of the Panchayat Service, we are of the view that the said declaration appears to have been made only to distinguish the Panchayat Service from other service of the State attached to the several departments, which are under the direct control of the State Government. If the members of the Panchayat Service are not to be the members of service under the State Government but are to be the officers and servants of the Panchayat unit to which they are allotted then Sub-sections (2), (2-A) and (4) (a) of Section 203 of the Panchayat Act would to some extent become unworkable as every time there is a transfer of the officer borne on the Panchayat Service there would be a change of master. It was ultimately held that the Panchayat Service constituted under Section 203 of the Gujarat Panchayats Act has all the characterstics of a civil service of the State. It was also observed by their Lordships, 'We should, however, make it clear that the view taken by us in the present case does not necessarily lead to the conclusion that every employee of a local body, who is not a member of the Panchayat Service should be treated as a member of the State Civil Service. It is a question of fact to be decided in each case depending on he circumstances of that case.
8. Referring to the earlier decision of their Lordships of the Supreme Court in State of Assam v. Kanak Chand Dutta : (1968)ILLJ288SC their Lordships observed in para 15, thus:
According to the above decision, the true test for determination; of the question whether a person is holding a civil post or is a member of the civil service is the existence of the relationship of master and servant between the State and the person holding a post under it and that the existence of such relationship is dependent upon the right of the State to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wage, and remuneration. It further held that the relationship of master and servant may be established by the presence of all or some of the factors referred to above in conjunction with other circumstances.
9. We will now analyse the provisions of the Act and of the various Rules framed under the Act in order to see as to whether the plaintiff, the teacher, who is a member of the Panchayat Samiti and Zila Parishad Service is a holder of the Civil post under the State? Under part IV of the Constitution of India, one of the directive principles of the State policy as contained in Article 40 is, that it shall not take steps to organise village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of Self-Government. A look at entry No. 5 of list II of the 7th Schedule of the Constitution will show that it specifically refers to local authorities for the purpose of Local Self Government or village administration as part of Local Government. The Panchayat Samitis and Zila Parishads constituted under the Act thus derive their authority from the Statute and are under the control of the Government. To make a Panchayat strong local body with certain statutory powers to implement the plans and to accelerate the basis of development, the Act was passed as a measure of de-centralisation of State power in the year 1959. Section 23 of the Act deals with the powers and functions of Panchayat Samiti. In particular, the Panchayat Samiti shall perform the functions specified in the schedule. Those functions are multifarious, namely, Community development, agriculture; Animal Husbandry; Health and Rural Sanitation, Education, Social Education, Communications, i.e., construction and maintenance of inter-Panchayat Roads and Culverts on such roads; Co-operation; Cottage Industries; work amongst backward classes; Emergency Relief; collection of statistics; Trusts; Rural Housing; Publicity and other miscellaneous matters, as contained in item 17 of the Schedule. Under Section 26 of the Act, it is the State Government who has to appoint for each Panchayat Samiti a Vikas Adhikari and such Extension Officers as well as Account Clerks as it may consider necessary. Such persons are either perons encadred in a State Service or persons holding post under the State Government. They are liable to transfer by the State Government in consultation with the Pradhan. Section 31 deals with staff of Panchayat Samitis and strength of each category of post other than the post referred to earlier in Section 26 has to be fixed by the State for each Panchayat Samiti, and even the scales of pay and allowances and other conditions of service of persons appointed to such posts are to be prescribed by the State Government. Any additional post in the Panchayat Samiti is also to be created with the prior approval of the State Government. The appointment to the posts in the various categories is out of the persons selected by the Rajasthan Panchayat Samiti and Zila Parishad Service Commission. Under Section 33, the Panchayat Samiti is empowered to impose and levy in the prescribed manner various taxes as contained in Section 33 of the Act. It. can also borrow moneys for carrying out the purposes of the Act, but with the approval of the State Government, and subject to such terms and conditions as may be prescribed. The Panchayat Samiti is to maintain such accounts and submit such statements to the State Government and the Zila Paris had as may be prescribed, as is clear from Section 30 of the Act. Similarly, under Chapter III of the Act, the powers and functions of the Zila Parishad are contained in Section 57 of the Act and under Section 55 it is the State Government, who is to appoint a Secretary for each Zila Parishad. Such Secretary is a member of the State Service or a person holding post under the State Government, and is liable to be transferred by the State Government in consultation with the Pramukh. In case the Panchayat Samiti or Zila Parishad fails to perform any of the duties enjoined upon it, then under Section 66-A, the State Government is empowered to appoint some person to perform those functions and direct that the expenses incurred in performance of such duty together with reasonable remunaration to the person appointed to perform it shall be forthwith payable by the Panchayat Samiti or the Zila Parishad, as the case may be. The State Government is also empowered under Section 67 of the Act to supersede or dissolve the Panchayat Samiti or Zila Parishad. Section 78 of the Act vests powers in the State Government to amend the schedule by notification is the official Gazette. Section 79 empowers the State Government to make rules and under Section 82 taxes and face are recoveralbe as arrears of land revenue. Section 84 empowers the State Government to delegate its powers to transfer institutions and works to any person, except the powers conferred upon it by Section 67, 78, 79 and 85. The State Government can also transfer any institution or work under its management or control to a Panchayat Samiti and similarly the Panchayat Samiti may transfer any institution or work under its management or control to any Panchayat subject of course to such conditions, limitations and restrictions, as may be specified by the State Government or the Panchayat Samiti, as the case may be. Sections 86 provides for constitution for whole of the State, a service designated as 'The Rajasthan Panchayat Samiti and Zila Parishad Service' and the recruitment to it has to be made district wise by a direct recruitment by the Commission. Under Section 86 (9A) (10) and (11) of the Act, the powers of transferring any member of the service from one Panchayat Samiti, whether in the same district or outside it, and the power to stay the operation of, or cancel any order of transfer made under Sub-section (9) of the Service Rules to be framed vest in the State Government Similarly, persons holding post encadred in the service are eligible for appointment or promotion to posts in a State Service or under State Government in accordance with the rules made in this behalf by the State Government and persons so appointed or promoted shall count the period of their holding posts in the service constituted under this Section for purposes of seniority and and pension. Persons holding appointment in a State Service are also eligible for appointment by transfer to a post encadred in the service constituted under Section 86 of the Act in accordance with the rules made in this behalf by the State Government, and on terms and conditions laid down in those rules. Under Section 87 of the Act, every person holding a post encadred in the service constituted under Section 86 shall be entitled to the payment of pension by the State Government out of the consolidated fund of the State in accordance with the rules made by them in that behalf.
10. The Rajasthan Panchayat Samitis and Zila Parishad Service Rules, 1959 (here in after referred to as the Rules of 1959) were framed by the Government of Rajasthan in exercise of the powers conferred by Section 79(1) of the Act. 'Service' has been defined in Section 2(k), 'Service' means the Rajasthan Panchayat Samiti and Zila Parishad Service. 'Member of the Service' as per definition contained in Section 2(1) means a person appointed substantively to a post in the service under the provisions of the rules. 'Appointing Authority' means the Panchayat Samiti or the Zila- Parishad, as the case may be. Under Rule 4 of the Rules of 1959 Primary School Teachers are also members of the 'Service'. Under Rule 6, vacancies after the commencement of the rules are also to be filled in by transfer of persons holding corresponding post under a Panchayat Samiti, Zila Parished or Government. Under the proviso to Rule 15, the Government may also make a request to the Service Commission for direct recruitment. The allotment of the candidates in order of merit to the various Panchayat Samities and Zila Parishads can also be done by the State Government under Rule 15A, under Rule 22A, a Government Servant can be transferred to a post in the service and similarly a surplus Government employee may with his consent be appointed by transfer to the service. Under Rule 22-c members of the service rendered surplus on reduction/abolition of posts can be absorbed in the vacancies existing in the service on similar posts or on posts declared by the Government to be equivalent to the posts in the service brought under reduction. As per Rule 24, the seniority inter se of the members of the service appointed to a post in a particular grade or category before the commencement of the rules, shall be such as has been or may be fixed by the Government Under Rule 30, persons appointed to the service under Rule 5 may be the transferred by the Panchayat Samitis or Zila Parishad, as the case may be, to a post under the Government in consultation with the Head of the Department concerned, provided the employee has been declared surplus by the Commission. Under Rule 31, the scales of pay and special pay, if any, admissible to a member of the service, shall be such as may be fixed by the Government from time to time. The existing scales of pay and special pay, if any, in the various categories of posts are as shown in the schedule. The regulation of pay, leave, allowances and pension etc. has also to be in accordance with the rules framed by the State Government, and till such time as separate rules are framed, on any or all of these matters, these matters are to be regulated mntatis mutandis by the Rajasthan Service Rules and the Rajasthan Travelling Allowance Rules, 1951. Under Rule 35, member of the Service is entitled to the payment of pension by the Government out of the consolidated fund of the State. Under Rule 36, matters relating to integration, fixation of pay, seniority etc. of employees appointed to the service under Rule 5 shall be such as may be determined by the Government from tim.3 to time.
11. By virtue of powers vested in it, under Sub-section (1) of Section 79 read with clause (b) of Sub-section (2) of Section 88 and Section 59 of the Act. the State Government made the Rules of 1961. In exercise of the powers conferred by Sub-section (I) of Section 79 of the Act read with Sub-section (6) of Section 86 of the Act, the State Government made the Rajasthan Panchayat Samitis and Zila Parishads (Selection-Commission, Conditions of Service) Rules, 1960 (here in after referred to as the Rules of 1960). Under the rules of 1960, a Selection Commission for selection of the posts in service has to be constituted by the State Government, and it is to contain three members out of which one is to be nominated as Chairman by the State Government. The remuneration is payable to the Chairman and Members. It is this Commission which makes selection to the posts in the service.
12. It will, therefore, be clear from the provisions of the Act, the Rules of 1961, the Rules of 1960 that the ultimate master of an employee in the 'service' is the State Government. The rules are framed by the State Government and the powers of the transfer are vested in it. The B.D.O. of the Panchayat Samiti and the Secretary of the Zila Parishad is a member of the State Service, the peasion of the member of the service is payable out service is consolidated fund of the State. These factors, to my mind, learve no manner of doubt that an employee of the 'Service' an defined in Section 2 (k) of the Rules of 1959 is a member of civil service of the State, namely, the Rajasthan Panchayat Service.
13. Having held above that a member, of the Rajasthan Panchayat Service is the holder of a civil post under, the State, there can be no doubt that Article 311, of the Constitution is attracted and a second show cause notice about the proposed, penalty has, to be given, before a member of the 'Service' and be can dismissed or removed, or before a major penalty on the member of the 'Service' can be inflicted, it is, however, made clear that there may be many other employees, who may not be member of the 'Service' who may be employed by the Panchayat Samiti arid, Zila Parishad for discharging of the various functions but, whether or not such an employee will also be a holder of a Civil post within the State will depend on the facts and circumstances of each case.
14. Even if the case is examined from another angle, there can be no doubt that the giving of a show cause notice proposing the penalty to be inflicted was necessary. Tae learned District-Judge has only examined the case, as to whether Article 311 of the Constitution applies or not, but has not, cared to go through the rules of 1961. Rule 7(1) is to the following effect;
(10) if the disciplinary authority, having regard to its findings on the charges is of the opinion that any of the penalties specified in clauses (iv) to (vii) of Rule 6 should be imposed it shall
(a) furnish to the member of the service a copy of the report of the inquiring authority, and where the disciplinary authority is not the inquiring authority a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority.
(b) give him a notice stating the action pro Dosed to be taken in regard to him and calling upon him to submit within a secified time such representation as he may wish to make against the proposed action; and
(c) consider the representation, if any made by the officer or servant as aforesaid and determine what punishment, if any, should be imposed on the member of the service and pass appropriate orders in the case.
(ii) If the disciplinary authority having regarding to its findings is of the opinion that any of the penalties specified in clauses (i) to (iii) of Rule 6 should be imposed, it shall pass appropriate orders in the case.
15. It will, therefore, be clear that under Rule 10(b) of the Rules of 1961 it is necessary that a disciplinary authority should give a notice staring the action proposed to be taken in regard to the employee and calling upon him to submit within the specified time such representation as he may wish to make against the proposed action, and under Rule 10(c) it is also necessary for the disciplinary authority to consider the presentation, if any, made by the officer or servant, and determine as to what punishment, if any should be imposed on the member of the service, and pass appropriate orders in the case. Thus, the provisions of Article 311 of the Constitution of India appear to have been incorporated in the Rules of 1961, under which as already observed above, a show cause notice stating the action proposed to be taken and calling upon him to submit representation, and consideration of the representation, if any, by the disciplinary authority before the penalty is imposed, is necessary. If the Rules of 1961 are not complied with, then any order of dismissal or removal or imposition of a major penalty will be in violation of the Rules and will be liable to be set aside.
16. The question is, as to whether any show cause notice providing the penalty was issued to the plaintiff or not? The contention of Mr. Surana, the learned Counsel for the respondent is that such a notice was given. He has referred to Ex. A-5 in this respect, but there is no dispute that this notice was not served on the plaintiff. The rules do not provide the mode of service of such a show cause notice. They do not provide that a copy of it, if affixed on the notice board, will be sufficient service. When the notice was sent by registered post, it was returned by the postman as the plaintiff was not at his house. Thus, the notice was not delivered. In any case, the show cause notice was not received by the plaintiff. Therefore, the order of dismissal even otherwise is contradictory to Rule 7(10) of the Rules of 1961, as extracted above.
17. Viewed from any angle, the order of dismissal cannot be upheld, as Article 311 of the Constitution and Rule 7(10) of the Rules of 1961 were not complied with in as much as no show cause notice proposing a penalty was served on the plaintiff.
18. In the result, I will allow the appeal, set aside the judgment and decree of the learned District Jude, Jaipur Dist. Jaipur, and restore that of the trial court. Any how, the plaintiff shall only be entitled for the arrears of salary, if any, after payment of proper court-fee. The plaintiff shall get costs of his suit through out from the respondents.