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Madhya Pradesh High Court · body

2002 DIGILAW 733 (MP)

Mango Bai v. State of M. P.

2002-08-01

A.K.MISHRA

body2002
ORDER 1. Petitioner is assailing the order P-4 passed by the SDO and order P-6 passed in appeal by the Additional Collector on 20.8.1999. Petitioner's removal was ordered by SDO u/s 40 of the M.P. Panchayat Raj and Gram Swaraj Adhiniyam, 1993. The Additional Collector dismissed the appeal. Revision preferred before the Additional Commissioner, Jabalpur was dismissed as per order P-7 passed on 27.10.2001. 2. Petitioner was elected as Sarpanch of Gram Panchayat Ghughari Naveen, Block Sihora, Tehsil Sihora, district Jabalpur. While he was holding the post, complaint was filed by Ayodhya Prasad and three others to initiate action u/s 40 of the Act. Pursuant to the filing of the complaint a show-cause notice P-2 was issued to the petitioner on 18/19th February, 1999 containing the allegations that petitioner advanced the benefit of Indira Avas Yojana and IRDP Scheme to her husband. Shri Munnalal, Up-Sarpanch, Hiralal and Laxmiprasad Panchs were also given the benefit of Indira Avas Yojna and IRDP Scheme. Up-Sarpanch was given the grant of Rs. 4,000/- and Hiralal, Panch was given the grant of Rs. 6,000/- and of Rs. 28,000/- as against keeping buffaloes and benefits of Indira Avas Yojna was also extended. Similar benefit of Indira Avas Yojna was given to Laxmi Prasad, Panch and the persons who were given the benefit of Indira Avas Yojna did not construct their house, as such the petitioner is liable for the misappropriation of the money of the Government. The petitioner knew it well that the benefit of such Government Scheme could not be extended to Panchas of Gram Panchayat. The petitioner was required to show-cause and to indicate that the beneficiaries have spent how much money failing which action will be taken to remove the petitioner u/s 40. 3. Petitioner submitted a reply to the show-cause notice contending that Munnalal was living below the poverty line, his name was mentioned in survey list at No. 5270, his annual income was below Rs. 2,500/-. Hence, giving the benefit of IRDP Scheme cannot be said to be improper. Similar contention was raised about Hiralal and Laxmi Prasad Panchas. 3. Petitioner submitted a reply to the show-cause notice contending that Munnalal was living below the poverty line, his name was mentioned in survey list at No. 5270, his annual income was below Rs. 2,500/-. Hence, giving the benefit of IRDP Scheme cannot be said to be improper. Similar contention was raised about Hiralal and Laxmi Prasad Panchas. They were also the persons whose names have been mentioned in the survey list of the persons living below the poverty line and in the circular issued on 7.4.1995 by the Panchayat and Rural Development Department of State of Madhya Pradesh, it was not specifically mentioned that the benefit cannot be extended to the office holder of Gram Panchayat. The amendment has been made in Panchayat Raj Evam Gram Swaraj Adhiniyam in the year 1997, published in the gazette on 7.1.1997. The benefit of IRDP Scheme was given to the husband of the petitioner in the year 1996 and that of Indira Avas Yojna in 1997 which has been given by the Janpad Panchayat, Panchayat. 4. Petitioner submits that no enquiry was held by the competent authority and outrightly an order of removal has been passed after receipt of the reply. It is the further submission that the enquiry was necessitated in the facts and circumstances of the case as the consequence which falls is disqualification for six years when an incumbent is removal u/s 40 of the Act. 5. Respondents have produced the file of SDO. Shri Shashank Shekhar, learned counsel appearing for the respondents submits that the nature of enquiry has to depend upon the facts and circumstances of the case. In the instant case, facts are not much in dispute as such the order passed is proper. No detailed enquiry was required to be held. No interference is required to be made in the order passed by the SDO, affirmed by the Additional Collector and the Commissioner. 6. Shri Vikas Pandey, learned counsel appearing for the petitioner has taken the Court through various order-sheets and material on record to submit that no enquiry was held by the SDO which is the prescribed authority. On the contrary the enquiry report was called from Panchayat Inspector. 6. Shri Vikas Pandey, learned counsel appearing for the petitioner has taken the Court through various order-sheets and material on record to submit that no enquiry was held by the SDO which is the prescribed authority. On the contrary the enquiry report was called from Panchayat Inspector. That report was placed not before the prescribed authority, but, before another Sub-Divisional Magistrate a different person and order has been passed on 31.3.1999 by the prescribed authority i.e. SDO who was competent to pass order u/s 40 of the Act. He submits that the prescribed authority has shirked from its duty to conduct an enquiry. Reply filed by petitioner to show-cause notice u/s 40 was received by the SDM on 5.3.1999 which was not permissible. On the basis of recommendations made by the said SDM, order of removal has been passed on 31.3.1999 by the SDO, Sihora. No enquiry was conducted by the Panchayat Inspector in presence of the petitioner. The report of Panchayat Inspector was not made available to the petitioner. A different SDM had considered the report, he had no authority to recommend removal of the petitioner. Thus, the proceedings of removal stands vitiated. 7. Shri Shashank Shekhar, learned counsel appearing for the respondents submits that as the order has been passed by the SDO the irregularity, if any, cannot come in the way of the ultimate order. The enquiry conducted by Panchayat Inspector has to be considered an enquiry done u/s 40 of the Adhiniyam as it was ordered by the SDO. 8. In the instant case the only question for consideration is whether the enquiry has been properly held before ordering removal of the petitioner u/s 40. No doubt about it SDO directed Panchayat Inspector to submit the report, but, the enquiry was not held by the Inspector in presence of the petitioner and report submitted by Panchayat Inspector was also not supplied to the petitioner which constituted adverse material which ought to have been supplied to the petitioner. Show-cause notice mentioned that work was not done by the beneficiaries and whether there is total misappropriation of the amount advanced, are questions on which an enquiry ought to have been held. Show-cause notice mentioned that work was not done by the beneficiaries and whether there is total misappropriation of the amount advanced, are questions on which an enquiry ought to have been held. Petitioner ought to have been allowed to adduce the evidence and only after determination of question about the misappropriation of the money advanced and what role as a matter of fact was played by the petitioner in the capacity of Sarpanch in disbursement of loan by Janpad Panchayat, was also the subject matter of evidence for which the petitioner ought to have been allowed an opportunity to adduce the evidence. 9. .Principles of natural justice are required to be observed before ordering removal of Sarpanch u/s 40 of the Act. In Kailash v. State of M.P. [ 1999 (2) JLJ 280 ] esteemed brother S.P. Khare, J. considered the question and held that removal of Sarpanch u/s 40 is a serious matter when he is removed and further disqualified for six years to be elected under the Act. It is not sufficient to give a mere lip-service to the requirement of law. It is true that it is not specifically provided in section 40 that principles of natural justice should be followed while holding an enquiry but it is implicit in this provision that the officer-bearer who is sought to be removed will be given a fair hearing. This Court held that the words ''after such inquiry as it may deem fit to make" in the main part of section 40 (1) of the Act would mean an inquiry which is held in the presence of the office-bearer and not behind his back. He should be allowed to inspect the documents which are to be relied upon against him and he should have the right to adduce his own evidence. These are the important facets of an inquiry to be held in conformity with the principles of natural justice. It is not the subjective choice of the prescribed authority to get an inquiry held of any kind. It does not envisage a secret enquiry or a preliminary inquiry alone. That is made only for collection of evidence and at that stage there is no participation of the person against whom the action is sought to be taken. It is not the subjective choice of the prescribed authority to get an inquiry held of any kind. It does not envisage a secret enquiry or a preliminary inquiry alone. That is made only for collection of evidence and at that stage there is no participation of the person against whom the action is sought to be taken. The words "as it may deem fit" have to be construed objectively and would mean an inquiry depending upon the facts and circumstances of each case. Some of the facts of the inquiry may be excluded if the facts are not very much in dispute or there are other circumstances to dispense with them. But the office bearer has a right of fair hearing. "You must hear the person who is going to suffer". That is a duty which lies upon everyone who decides anything. There is, however, some flexibility depending upon the subject-matter. Similar is the law laid down by this Court in Raja Raj Singh v. State of M.P. and others [ 2000 (2) JLJ 242 ]. 10. Secret enquiry or preliminary enquiry alone is not enough. Collection of evidence is required and participation of person against whom the action is sought to be taken. Order-sheets of the SDO's file indicated that biparte enquiry was not held at all nor was directed. Panchayat Inspector conducted the exparte enquiry. Report of which not supplied. Thereafter an incompetent authority, SDM considered the report and recommended the removal and order dated 31.3.1999 mentioned that Prescribed Authority i.e. SDO was in agreement with the view of the SDM and has passed the order on 31.3.1999 itself. Whereas it was incumbent upon the SDO to receive the reply and to apply independent mind after holding an enquiry. All these requirements have been flagrantly violated in the instant case. Considering the serious nature of charges levelled against the petitioner she ought to have been given due and proper opportunity. 11. Order P-4 dated 31.3.1999 passed by the SDO and order P-7 dated 20.8.1999 passed by the Additional Collector and order P-7 dated 17.10.2001 passed by the Additional Commissioner are quashed. SDO is directed to hold the enquiry in accordance with law in the light of the observation made hereinabove. In the facts and circumstances of the case, costs on parties.