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Madhya Pradesh High Court · body

2003 DIGILAW 29 (MP)

Babita Lihare v. Surendra Rana

2003-01-06

A.K.MISHRA

body2003
JUDGMENT Petitioner is assailing the order (P-3) passed by the SDO on 10.12.2001 and the appellate order (P-9) passed by the Collector on 28.5.2002 and the revisional order (P-13) passed by the Commissioner on 15.11.2002. Petitioner assails the order of removal from the post of Sarpanch of Gram Panchayat Dongaria, Block Khairlanji, Tahsil Waraseoni, District Balaghat mainly on the ground that no enquiry was conducted by the SDO. Order sheets (P-15) of the SDO have been placed on record collectively, which goes to indicate that show-cause notice was issued to the petitioner u/s 40 of the M.P. Panchayat and Gram Swaraj Adhiniyam, 1993 on 30.3.2001. No evidence was adduced before the SDO against the petitioner though the petitioner submitted the reply P-17 and petitioner also did not adduce the evidence. Hence, his removal was ordered relying on the preliminary enquiry report and evidence recorded during the course of preliminary enquiry which was conducted sometime in December .2000, that too was as per the order of SDO in proceeding u/s 40. Petitioner submits that it was incumbent upon the SDO to conduct an independent enquiry before ordering his removal u/s 40 of the Act, thus, when no evidence was adduced before the SDO the show-cause notice ought to have been discharged. No witness was examined to support the charges against the petitioner. Petitioner could not be asked outrightly to adduce the evidence to show his innocence. Firstly charges were required to be established by adducing the evidence. Thus, the procedure adopted by the SDO for removing the petitioner u/s 40 of the Act is absolutely bad in law and grossly arbitrary and order deserves to be set aside. Copy of preliminary inquiry report was not supplied and it was relied upon to remove petitioner. A return has been filed by the respondents No.1 and 2 contending that' the petitioner never demanded copy of the preliminary enquiry report. Petitioner was having the knowledge of the enquiry report which was on the record of the SDO. Petitioner participated in the proceedings of preliminary enquiry. Petitioner ought to have demanded the copy of inquiry report. As petitioner did not file any application for supply of the enquiry report before the SDO, cannot raise grievance that the copy of the preliminary enquiry was not supplied. The report of DFO was available which was against the petitioner. The removal is in accordance with law. Petitioner ought to have demanded the copy of inquiry report. As petitioner did not file any application for supply of the enquiry report before the SDO, cannot raise grievance that the copy of the preliminary enquiry was not supplied. The report of DFO was available which was against the petitioner. The removal is in accordance with law. Petitioner was given several opportunities to adduce evidence, but, failed to avail the same. Reply of the petitioner was not satisfactory and in view of the preliminary enquiry report the order is proper and calls for no interference in the instant writ petition. In the course of preliminary enquiry witnesses were examined in the presence of the petitioner, he did not cross-examine them, nor any request was made to cross-examine the witnesses examined in the course of preliminary enquiry. Shri A.M. Trivedi, learned counsel for the petitioner submits that no enquiry has been conducted by the SDO, thus, the order of removal is bad in law and liable to be set aside. Shri Maninder Bhatti, learned counsel appearing for the respondents No.1 to 6 and intervenor has supported the impugned order so also Shri Sanjay K. Agrawal, learned counsel appearing for respondents No.7 to 9. It is clear that the SDO has illegally relied upon the preliminary enquiry report. Fair procedure required that to establish the charges against the petitioner witnesses ought to have been examined independently by the SDO in proceedings u/s 40 of the Act, the preliminary enquiry which was conducted in the year 2000 was not part of the proceedings u/s 40 of the Act. When the proceedings u/s 40 of the Act are initiated the witnesses are required to be examined before the SDO and opportunity has to be given to the sarpanch against whom removal proceedings are taken to cross-examine the witnesses, that has not been done in the instant case. Even the report of the preliminary enquiry has not been supplied to the petitioner and it is clear that during the course of preliminary enquiry witnesses were not cross-examined and that was not proceedings u/s 40 of the Act. Even the report of the preliminary enquiry has not been supplied to the petitioner and it is clear that during the course of preliminary enquiry witnesses were not cross-examined and that was not proceedings u/s 40 of the Act. SDO committed basic error in asking the petitioner to adduce evidence first to prove innocence, the SDO ought to have first recorded evidence of the witnesses who were supposed to prove the charge against the petitioner, if preliminary enquiry was to be used as evidence by the SDO the petitioner ought to have been given the copy of the same and if the statements of the witnesses who were not cross-examined during preliminary inquiry were to be relied upon, petitioner ought to have been given opportunity to cross-examine them in proceeding u/s 40 of the Act. They ought to have been examined afresh in proceeding u/s 40 and were required to state the facts. Thus, in my opinion when no enquiry has been conducted by the SDO to establish the charges and there is no legal and acceptable evidence to establish the charges against the petitioner and basic procedure adopted is faulty. Removal of petitioner is bad in law. Thus, in my opinion, order P-3, P-11 and P-13 are liable to be set aside and are quashed. The case is remitted back to the SDO to conduct an enquiry afresh and to supply the copy of the enquiry report if that is to be used for limited purpose, full fledged inquiry is required to be conducted. SDO has to examine witness first to prove the charges against the petitioner giving opportunity of cross-examination to petitioner. Independent inquiry be conducted, SDO not to act upon preliminary enquiry report. Writ petition is allowed. Let fresh enquiry be conducted within four months from today. Petitioner has to continue as Sarpanch as removal is illegal and consequent to quashment of orders P-3, P-11 and P-13. MWP No. 3/2003 is dismissed in view of the decision in writ petition. Costs on parties.