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Madhya Pradesh High Court · body

2002 DIGILAW 1067 (MP)

Kailash Chandra Jain v. State of M. P.

2002-12-04

A.K.MISHRA

body2002
JUDGMENT Petitioner, who is sarpanch of gram panchayat Kachargaon (Bada), tehsil Dheemerkheda, district Katni, assails the order of his removal u/s 40 passed by the SDO on the ground that no enquiry in the eye of law was conducted by the SDO and the order of removal has been passed on 25.5.2002, the date which was a national holiday owing to Mi lad- un-nabi. Petitioner was directly elected by the voters as sarpanch of gram panchayat Kachargaon (Bada), tehsil Dheemerkheda, district Katni. Proceedings u/s 40 of the M.P. Panchayat Evam Gram Swaraj Adhiniyam, 1993 were initiated. Show cause notice was issued. Reply was submitted by the petitioner to imputation of charges. Several charges were levelled. Earlier, preliminary enquiry was directed by the Collector to be conducted by Shri B.P. Sahu, Deputy Auditor and the Enquiry Officer, who submitted the report that the petitioner and ex-sarpanch of the Kachargaon gram panchayat are guilty of charges. Based thereupon, a show cause notice u/s 40 of the Act was issued. Petitioner denied the charges. Enquiry was conducted. Chief Executive Officer, janpad panchayat, Dheemerkheda was directed to conduct the enquiry. CEO janpad panchayat, Dheemerkheda submitted enquiry report P-2 in compliance of the order dated 14.9.2001 before the Collector. It was held by the CEO that the petitioner is only partly responsible for the charges No.5 and 6. No case of embezzlement was found proved and submitted that only warning be given to the petitioner to be cautious in future. Petitioner submits that with malafide intention, the preliminary report submitted by Shri B.P. Sahu has been accepted which was conducted in the absence of the petitioner before issue of show cause notice u/s 40 of the Act and order of his removal has been passed exercising the power u/s 40 of the Act. Petitioner submits that no enquiry was conducted by Shri B.P. Sahu in presence of the petitioner. No opportunity was given to him for cross-examination of the concerned witnesses. No documents· were provided. The impugned order has been passed in most arbitrary manner. Preliminary enquiry was conducted ex parte. When fresh enquiry was directed, report of CEO which was submitted ought to have been acted upon. It was not open to accept the preliminary enquiry report of Shri B.P. Sahu. Enquiry officer did not supply the copies of documents relevant to the charges levelled against him. Preliminary enquiry was conducted ex parte. When fresh enquiry was directed, report of CEO which was submitted ought to have been acted upon. It was not open to accept the preliminary enquiry report of Shri B.P. Sahu. Enquiry officer did not supply the copies of documents relevant to the charges levelled against him. In the return filed by the gram panchayat-respondent No.3, it is contended that the preliminary enquiry was conducted. There are documents to support the charges. Thus, issue of show cause notice is enough. Reply was called. Thus, the order is proper. No interference is called for considering the serious nature of the charges levelled against the petitioner. Shri B.P. Sahu has submitted the preliminary enquiry report. Enquiry was conducted by Shri Sahu in December 2000. Show cause notice was issued on 19.2.2001 u/s 40 of the Act. The report which has been submitted by CEO in the instant case after issue of show cause notice is in favour of the petitioner. Earlier, preliminary enquiry was ex parte enquiry though the statement of the petitioner was recorded. Thus, in my opinion, it was not open to act upon the preliminary enquiry report to remove the petitioner. B parte enquiry ought to have been conducted by the SDO giving petitioner opportunity of cross-examination of the witnesses. Nothing of that sort has been done. No semblance of enquiry has been held by the SDO. This Court, in Kamal Kishore Krishna Gopal Khandelwal v. Janpad Panchayat. Nalklzeda and Others. [ 1999 (2) JLJ 370 = 2000 (1) MPLJ 309 ] has held that enquiry u/s 40 is not an empty formality. There should be compliance of necessary provisions and person should be punished legally. Person has to be given due opportunity of defending himself by conducting the enquiry in the presence of the sarpanch who is proposed to be removed. The sarpanch has to be given opportunity of cross-examination of the witnesses, that opportunity has not been given in the case, if the enquiry report submitted was to be acted upon that is in favour of the petitioner. In case SDO was not to agree with it, further enquiry ought to have been held in presence of the petitioner. Proper enquiry is required subsequent to issue of show cause notice. Thus, the order of removal of the petitioner cannot be sustained. In case SDO was not to agree with it, further enquiry ought to have been held in presence of the petitioner. Proper enquiry is required subsequent to issue of show cause notice. Thus, the order of removal of the petitioner cannot be sustained. Learned counsel for the respondent No.3 submits that the petitioner may be asked to avail alternative remedy of appeal against the order impugned. I am not incllined to dismiss this writ petition as patent illegality has been committed and jurisdictional error while removing the petitioner. Availability of alternative remedy is not absolute bar. Another reason not to dismiss the writ petition due to availability of the alternative remedy is that fresh elections of sarpanch are scheduled to be held, that would further complicate the issue in case the petitioner is relegated to alternative remedy at this stage and if election is allowed to be held that may go in vain. Availability of alternative remedy is not an absolute bar when principles of natural justice have been violated. The order P-1 is quashed. Writ petition is allowed. However, SDO is free to conduct an enquiry in accordance with law giving opportunity to the petitioner to participate and defend himself. No election of sarpanch be held in view of quashment of the order P-1. Petitioner has to continue as sarpanch. No order as to costs.