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Madhya Pradesh High Court · body

2005 DIGILAW 1131 (MP)

Ramkumar Saraf v. Collector, Katni

2005-11-09

K.K.LAHOTI

body2005
ORDER 1. Petitioner has challenged order Annexure P-7 passed by the Sub-Divisional Officer, Bahoriband, District Katni, dated 19.5.2004 by which petitioner has been removed from the office of Sarpanch, Gram Panchayat Bahoriband under section 40 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred as the "Panchayat Act"), and order Annexure P-15 dated 6.9.2004 by which appeal preferred against order Annexure P-7 has been dismissed. 2. The petitioner has assailed aforesaid orders on the ground that the principle of natural justice has been violated while passing the order against the petitioner for his removal from the office of Sarpanch and the SDO has relied on the evidence which was recorded behind the back of the petitioner. Petitioner has placed reliance on Single Bench judgments of this Court in Kailash Kumar Dangi v. State of M.P. & others [ 1999 (2) JLJ 280 = 1999 (2) MPLJ 722 ], Raja Raj Singh v. State of M.P. & others [ 2000 (2) JLJ 242 = 2001 (4) MPLJ 364 ], Mango Bai v. State of MP. & others [2002 (2) Vidhi Bhasvar 165 = 2003 (2) MPLJ 112] and submitted that impugned orders be quashed. 3. Learned counsel for respondents No. 1 and 2 supported the order and submitted that before passing the impugned order, petitioner was afforded due opportunity of hearing by issuing show cause notice and charge-sheet and thereafter the competent authority decided the matter in accordance with law. The petitioner got sufficient opportunity to rebut the allegation of misconduct in which petitioner failed. Competent authority rightly removed the petitioner from the office of the Sarpanch. 4. To appreciate the rival contentions of the parties, it is necessary to state some facts of the case. Petitioner was elected as Sarpanch, Gram Panchayat Bahoriband against whom certain complaints were made to the SDO, Bahoriband. On the basis of complaints, SDO registered three cases against the petitioner. All the three cases were consolidated and decided by the impugned order. On receiving complaints, SDO sought report from the Chief Executive Officer, Janpad Panchayat Bahoriband who submitted his report on 1.3.2004. Thereafter, a show cause notice was issued to the petitioner asking him to reply the allegations and to show cause why the petitioner be not removed from the post of Sarpanch. Petitioner submitted his reply to the show cause notice. On receiving complaints, SDO sought report from the Chief Executive Officer, Janpad Panchayat Bahoriband who submitted his report on 1.3.2004. Thereafter, a show cause notice was issued to the petitioner asking him to reply the allegations and to show cause why the petitioner be not removed from the post of Sarpanch. Petitioner submitted his reply to the show cause notice. The SDO found that reply filed by the petitioner is not convincing, it was filed without referring the relevant record on the basis of the memory only. Though the petitioner asked opportunity to lead evidence but it was found that it is only dilatory tactics as the petitioner failed to produce relevant record in support of his defence, to the satisfaction of the SDO and on this ground, the SDO found misconduct proved against the petitioner. 5. The sole question arises whether the petitioner was deprived to lead evidence in the case or principle of natural justice has been violated. 6. This Court in Kailash Kumar Dangi 's case (supra), considering scope of enquiry under section 40 of the Panchayat Act held thus: "14. In the present case there was not total violation of the principles of natural justice as a show-cause notice was given and the reply of the petitioner obtained. But keeping in view the facts of the case, certain facets of natural justice as stated above were not complied with, resulting in prejudice to the petitioner. He was not permitted to adduce his own evidence to rebut the material collected against him. The charges were such which could be proved or disproved by evidence in the inquiry. One of the main charges was the distribution of pattas to those who were not landless and a conclusion on this point could be reached after recording evidence and after seeing the list supplied by the Tahsildar or the BDO. The prescribed authority in the impugned order has not dealt with this aspect. Similarly the charges regarding negligence in the maintenance of garden, supply of water, drainage and information regarding the meeting of the Gram Sabha could be decided on the basis of evidence and not merely relying upon a preliminary inquiry report. The prescribed authority in the impugned order has not dealt with this aspect. Similarly the charges regarding negligence in the maintenance of garden, supply of water, drainage and information regarding the meeting of the Gram Sabha could be decided on the basis of evidence and not merely relying upon a preliminary inquiry report. The basic fault in the impugned order is that an inquiry held by the BDO behind the back of the petitioner has been held to be a valid 'inquiry' under section 40 of the Act and he has been packed-up on the basis of that inquiry without even supplying a copy of the same to the petitioner, and without affording him an opportunity to lead his own evidence even when he repeatedly asked for the same. This was denial of fair hearing resulting in serious prejudice to the petitioner. The action of removal and disqualification has to be struck down as there has been a failure of justice. The guilty must be punished but the finding of guilt has to be arrived after fair hearing which was denied in this case. In Ballabhdas v. State of M.P. [ 1998 (2) JLJ 303 ], it has been observed by this Court that a full fledged enquiry is provided under section 40 of the Act. It contemplates 'due enquiry'. As observed in Delhi Transport Corporation v. DTC Mazdoor Congress [ AIR 1991 SC 101 ], right to fair treatment is an essential inbuilt of natural justice which is an integral part of the guarantee of equality assured by Article 14 of the Constitution of India. The concept of reasonableness and non-arbitrariness pervades the entire Constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution." 7. In Raja Raj Singh's case (supra) this Court held thus :- "7. Now to the merits of the case. Before I dead with the factual scenario it is apposite to refer section 40 of the Act. It reads as under: "40. In Raja Raj Singh's case (supra) this Court held thus :- "7. Now to the merits of the case. Before I dead with the factual scenario it is apposite to refer section 40 of the Act. It reads as under: "40. Removal of office bearers of Panchayat -- (1) The State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time, removal an office bearer- (a) if he has been guilty of misconduct in the discharge of his duties; or (b) if his continuance in office is undesirable in the interest of the public: Provided that no person shall be removed unless he has been given an opportunity to show-cause why he should not be removed from his office. Explanation -- For the purpose of this sub-section "misconduct" shall include – (a) any action adversely affecting -(i) the sovereignty, unity and integrity of India; or (ii) the harmony and the spirit of common brotherhood amongst all the people of State transcending religious, linguistic, regional, caste or sectional diversities; or (b) gross negligence in the discharge of the duties under this Act. (2) A person who has been removed under sub-section (1) shall forthwith cease to be a member of any other Panchayat of which he is a member, such person shall also be disqualified for a period of six years to be elected under this Act'. On a bare reading of the aforesaid provision it is luminously clear that the prescribed authority is mandated in law to cause an inquiry. The proviso explains the said authority is required to afford an opportunity to the person affected. In the case Bansmani (supra) this Court while dealing with section 116 of the Panchayat Act, 1962 (M.P.) expressed thus: 5. It cannot be disputed that Opportunity to show cause must be real opportunity. The person proceeded against must not only be told the allegations of misconduct, but he must also be informed of the material which is sought to be used against him in support of the charges so that he may offer his explanation in respect of that material. A person who holds office as a member or as President has a right to continue in the office until the expiry of the term. A person who holds office as a member or as President has a right to continue in the office until the expiry of the term. The order of removal which is passed under section 116 affects this valuable right and the finding of misconduct on which such an order based casts a stigma in the public life of the person. Having regard to these consequences, we are of the opinion that the power of removal is quasi judicial in nature. In Bhagat Ram v. State of Punjab [ AIR 1972 SC 1571 ] a provision in the Punjab Municipal Act relating to the removal of members was considered by the Supreme Court. It was held in the case that the order contemplated by the provision removing a member was quasi-judicial in nature and that it was a not only desirable but also essential that the authority passing the order should give reasons. It was further pointed out that all the material should be disclosed to the person concerned so that he may give an effective answer not only to the averments contained in the show cause notice but also to the materials on the basis of which the show cause notice was issued. The principles laid down in Bhagat Ram v. State of Punjab (supra) equally apply to the exercise of power under section 116 of the Panchayat Act. The State Government, while taking action under this provision, should not only disclose the charges but also the entire material on which the charges are based to the person concerned so as to afford him real opportunity to show cause against the charges. Further, the State Government should give reasons in support of the order removing the person from the office so as to indicate why the explanation submitted is not acceptable. It has recently been observed that the rule requiring reasons to be given is like the principle audi alteram partem, a basic principle of natural justice Siemens Engg. and Mfg. Co. v. Union of India [ AIR 1976 SC 1785 , p. 1789]. It has recently been observed that the rule requiring reasons to be given is like the principle audi alteram partem, a basic principle of natural justice Siemens Engg. and Mfg. Co. v. Union of India [ AIR 1976 SC 1785 , p. 1789]. Even in case of administrative order where rights of parties are affected, rules of natural justice have to be followed and it is desirable that the order should contain reasons: Hochtief German v. State of Orissa [ AIR 1975 SC 2226 , p. 2234], Mahabir Jute Mills v. Shibban Lal [ AIR 1975 SC 2057 ] and State of Gujarat v. Ambalal [ AIR 1976 SC 2002 , p. 2005]. Recently in the case of Kailash Kumar Dangi v. State of M.P. & others [ 1999 (2) JLJ 280 ], this Court also reiterated the principles relating to due enquiry. Emphasis was laid on the concept of real enquiry and not a show of enquiry. The present factual matrix has to be tested on the anvil of the law laid down in the aforesaid decisions. It is not disputed by the learned counsel for the State that the enquiry was conducted by the three members of the committee behind the back of the petitioner. Such preliminary enquiry may have the sanction of law and the petitioner cannot claim that the said enquiry should be held in his pressence but the real enquiry has to be held by the prescribed authority and in the said enquiry where the petitioner has to be given due/adequate/sufficient opportunity. It is submitted by Mr. Bhatti, on a perusal of the impugned order passed by the prescribed authority, it is perceptible that the person who made complaints against the petitioner were not examined by the prescribed authority and the petitioner could not have cross-examined them but, unfortunately the statement of the said witnesses have been considered by the Collector and been utilised against the petitioner. On a perusal of the record, it is noticed that this fact is borne out on record and the learned counsel for the State is not in a position to dispute the same. Quite apart from that, it is noticeable that the petitioner's application for supply of documents had not been properly construed by the prescribed authority, as the petitioner was supplied only the inquiry report but not the materials/other documents. Quite apart from that, it is noticeable that the petitioner's application for supply of documents had not been properly construed by the prescribed authority, as the petitioner was supplied only the inquiry report but not the materials/other documents. An interesting feature which cannot be lost sight of is that the appellate authority has called for these documents by order dated 8.4.1999 but it does not appear that the petitioner was supplied the said documents. It has been ruled in the case of Bansmani (supra), the documents which are sought to be uti1ised against the holder of the office, should be supplied to him so that he can have fair chance to rebut the same. As the factual matrix indicates the materials collected against the petitioner were not supplied to him and further the petitioner was not granted sufficient opportunity to produce his evidence to rebut the allegations made against him, I am of the considered view, the order passed by the prescribed authority and affirmed by the appellate authority are vulnerable being violative of principles of natural justice as well as being against the basic concept of adjudicating process and accordingly, the said contained in Annexure P-12 and P-18 are hereby quashed. As the orders are being quashed on this limited ground, a proper inquiry has to be held. To cut short delay, it is directed that the petitioner shall appear before the prescribed authority on 7.1.2000 and the prescribed authority shall supply him the documents within a period of two weeks therefrom and proceed with the inquiry as per law. It is hereby made clear, after receiving the relevant documents, it would be open to the petitioner to file an additional reply, if he so chooses. The prescribed authority shall conclude the proceedings by end of February, 2000." 8. In Mango Bai v. State of M.P. & others (supra) this Court held thus :- "8. In the instant case the only question for consideration is whether the enquiry has been properly held before ordering removal of the petitioner under section 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. 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. 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 under section 40 of 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 under section 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 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. 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. 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 every one who decided anything. There is, however, some flexibility depending upon the subject-matter. Similar is the law laid down by this Court in Raja Rai 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. Ordersheets of the SDO's file indicates that by parte enquiry was not held at all nor was directed. Panchayat Inspector conducted the ex-parte 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." 9. Now the facts of the present case may be seen. In this case, on the basis of preliminary report a show cause notice was issued to the petitioner arid the petitioner submitted his reply. Thereafter, the petitioner made a prayer to the competent authority to lead evidence and to produce the record. Now the facts of the present case may be seen. In this case, on the basis of preliminary report a show cause notice was issued to the petitioner arid the petitioner submitted his reply. Thereafter, the petitioner made a prayer to the competent authority to lead evidence and to produce the record. This opportunity was denied to the petitioner on the ground that it will delay the proceeding and the petitioner ought to have produced the entire record. Petitioner was entitled for such opportunity and merely on the basis of preliminary enquiry report which was conducted behind the back of the petitioner, no order jeopardising the interest of the petitioner ought to have been passed by the authority. When the petitioner made a specific prayer to the competent authority to lead the evidence in respect of allegations made against the petitioner, it was duty of the competent authority to permit the petitioner to lead such evidence. Merely it could have caused some delay was not sufficient ground to deny the petitioner such opportunity. Now it is settled law that before removal of a elected person from the office Sarpanch, such opportunity ought to have been allowed to him. In this case, petitioner has been denied such an opportunity for which the petitioner was entitled. As the principles of natural justice have been violated, impugned order Annexure P-VII deserves to be set aside. 10. Consequently, this petition is allowed. Impugned order Annexure P-VII dated 19.5.2004 passed by SDO Bahoriband, and order Annexure P-XV dated 6.9.2004 passed by the Collector, Katni, are hereby quashed. Competent authority SDO is directed to make an enquiry in accordance with law and afford opportunity, SDO shall receive/record evidence and also afford opportunity to the petitioner to produce relevant record or summon relevant record in respect of allegations made against the petitioner. Thereafter, concerned authority shall decide the matter expeditiously. No order as costs.