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Madhya Pradesh High Court · body

2007 DIGILAW 429 (MP)

Gram Panchayat Harichha v. Ashoksingh

2007-04-10

P.K.JAISWAL

body2007
JUDGMENT 1. Heard on I.A. No. 3380/2007, an application for taking additional facts and grounds on record. 2. I.A. No. 3380/2007 is allowed. 3. The additional facts are taken on record. 4. With the consent of the parties this petition is finally disposed of and therefore no order is necessary on I.A. No. 3019/07, an application for vacating stay. 5. The respondent No.1 was appointed as Panchayat Karmi of Gram Panchayat Harichha. Panchayat Karmi appointed under the scheme does not acquire the status of Secretary of the panchayat under section 69(1) of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for short "Act of 1993"), unless specifically appointed by a competent authority under that provision. Section 69 provides for appointment of a Secretary only by State Government or the prescribed authority. It is not in dispute that Collector is a prescribed authority and appointed the respondent No.1 as Panchayat Secretary of Gram Panchayat Harichha. The Sarpanch of the petitioner Gram Panchayat lodged a complaint against the respondent No.1 before the respondent No.2. The respondent No.2 forwarded the said complaint to the Sub-Divisional Officer, Mehgaon and directed to inquire the matter and to submit his report. The Sub-Divisional Officer, after holding an inquiry submitted his report on 21.9.2005 and averred that points No.3 and 4 of the complaint are correct. In respect of point No.2, for want of document he had not given any opinion or report. Sub-Auditor Shri J.S. Yadav, vide its audit report dated 28.8.2005 for the year 2004-2005, averred that respondent No.1 has committed financial irregularities. The Collector, after considering the audit report and report of the Sub-Divisional Officer, withdrew the power of Panchayat Secretary from the respondent No.1 vide order dated 21.11.2005 and as interim measure additional charge of Secretary, Gram Panchayat Harichha was handed over to Shri Brijmohan Singh Bhadoriya, Gram Sahayak, Gram Panchayat Pachera, Gormi until further orders. 6. The respondent No.1 challenged the said action and order dated 21.11.2005 (Annexure P-15) by filing an appeal under rule 3 of the Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995 (for short "Rules of 1995") before the Commissioner. Chambal Division, Morena on the ground that the order was passed without giving any opportunity of hearing to the petitioner. 6. The respondent No.1 challenged the said action and order dated 21.11.2005 (Annexure P-15) by filing an appeal under rule 3 of the Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995 (for short "Rules of 1995") before the Commissioner. Chambal Division, Morena on the ground that the order was passed without giving any opportunity of hearing to the petitioner. It is also averred that after audit report and report of the Sub-Divisional Officer, no show cause notice was issued to him and order is passed with a malafide intention at the instance of Sarpanch of the Gram Panchayat Harichha. Appellate authority, after appreciating the record of the Collector, report of the Sub-Divisional Officer, audit report and complaint made by the Gram Panchayat, has found that respondent No.1, failed to hand over the cash book charge. It is also found that respondent No.1, in connivance with his mother, who was earlier Sarpanch of the said Gram Panchayat, misappropriated the Gram Panchayat fund and refused to receive the agenda and cooperate with the Gram Panchayat. It is also found that show cause notice was issued through respondent No.3 Deputy Director, Panchayat of Districe Bhind on 16.3.2005. The respondent No.1 submitted his reply on 24.3.2005. The appellate authority also held that no notice was issued by the Collector, District Bhind nor any opportunity of hearing was given to the respondent No.1 before withdrawing the powers of Panchayat Secretary which is in violation to the principle of natural justice and therefore, learned appellate authority set aside the order dated 21.11.2005 passed by the respondent No.2 and allowed the appeal of the respondent No.1. 7. Learned counsel for the petitioner has submitted that Gram Panchayat was not made party before the appellate authority and therefore, the correct facts were not brought to the knowledge of the learned appellate authority regarding giving of opportunity of hearing to the respondent No.1. It is also submitted that the opportunity of hearing was given and after giving opportunity of hearing the power of Secretary has been withdrawn by the respondent No.2 vide order dated 21.11.2005. It is also submitted that the respondent No. 1 has misappropriated a sum of Rs. 1,73,520/- and has committed serious offence and in inquiry this fact was found proved by the Deputy Director on 12.2.2005. It is also submitted that the respondent No. 1 has misappropriated a sum of Rs. 1,73,520/- and has committed serious offence and in inquiry this fact was found proved by the Deputy Director on 12.2.2005. A criminal complaint was also filed against the respondent No.1 and after inquiry criminal case was registered vide Case No. 151/2006 which is pending for consideration before the Judicial Magistrate First Class, Mehgaon, District Bhind. He also drew my attention to Annexure P-6 dated 16.3.2005 issued by the respondent No.3 by which show cause notice was issued to the respondent No.1. Thereafter Gram Panchayat on 28.7.2005 passed a resolution for removal of respondent No.1 and on 31.7.2005 Gram Sabha approved the resolution for removal of respondent No.1 and decided to terminate the services of the respondent No.1 as Panchayat Secretary and forwarded the said resolution to the respondent No.3 vide Annexure P-13 on 22.8.2005. The respondent No.2 and 3 after receiving the complaint vide letter dated 13.9.2005 asked the Sub-Divisional Officer, Mehgaon to submit its report. The Sub-Divisional Officer, after due inquiry, submitted its report and came to the conclusion that the respondent No. 1 has misappropriated a sum ofRs. 78,520/-, and thereafter respondent No.2 passed an order withdrawing the power of Panchayat Secretary from the respondent No.1. The said action is just and proper and learned Commissioner by the impugned order allowed the appeal without giving any direction to the Collector to issue show cause notice to the respondent No.1 and thereafter pass an appropriate order for withdrawal of powers of Panchayat Secretary. 8. On the other hand, learned counsel for the respondent No.1 submitted that the writ petition filed by the petitioner is not maintainable for want of resolution under section 44 of the Panchayat Adhiniyam as well as under the provisions of M.P. Panchayat (Procedure of Meeting and Conduct of Business) Rules, 1994, and for want of resolution the petition filed by the petitioner is not maintainable and prayed for dismissal of the same. It is also averred that petitioner has a right to challenge the appellate order by filing a revision under rule 5 of the Rules of 1995 before the State Government. Lastly it is submitted that the facts mentioned in this petition are disputed and the learned Commissioner has not committed any error in passing the impugned order. It is also averred that petitioner has a right to challenge the appellate order by filing a revision under rule 5 of the Rules of 1995 before the State Government. Lastly it is submitted that the facts mentioned in this petition are disputed and the learned Commissioner has not committed any error in passing the impugned order. The scope of Article 227 of the Constitution of India is very limited and no interference is warranted, the Collector without conducting any inquiry and without giving any show cause notice to the respondent No.1 passed the order. With the above objection learned counsel for the respondent No.1 has submitted that impugned order is just and proper and prayed for dismissal of writ petition. 9. I have heard the learned counsel for the parties and perused the record. 10. In respect of maintainability of the writ petition filed by the petitioner, the resolution No.6 dated 31.12.2006 (Annexure P-l) is on record by which Gram Panchayat authorized the Sarpanch of Gram Panchayat Harichha to file writ petition before this Court and thus, the writ petition filed by the Sarpanch is maintainable. From the perusal of the record I also found that show cause notice was issued vide Annexure P-6 dated 16.2.2005. The respondent No.1 submitted his reply on 24.3.2005. The respondent No.2 asked the Sub-Divisional Officer to submit the report on the complaint lodged by the petitioner. He submitted the report and complaint No.1, 3 and 4 was found proved against the respondent No.1 and thereafter order for withdrawal of power of Secretary was passed by the respondent No.2. There are serious allegations against the petitioner for misappropriation of amount of Rs.1,73,520/- and FIR was lodged and criminal case was registered against the respondent No.1 vide Crime No. 151/06 and proceedings is going on before Judicial Magistrate First Class, Mehgaon, District Bhind 11. The presence of another adequate remedy is not a complete bar to a writ petition. It is a rule of policy, convenience, discretion rather than a rule of law. The appellate authority without issuing any notice to the petitioner quashed the order. The petitioner was not party to the proceedings before the appellate authority. 12. The respondent No.1 holds a position of trust where honesty and integrity are inbuilt requirements of functioning and, therefore, in my opinion, the matter should be dealt with firmly with firm hands and not leniently. The petitioner was not party to the proceedings before the appellate authority. 12. The respondent No.1 holds a position of trust where honesty and integrity are inbuilt requirements of functioning and, therefore, in my opinion, the matter should be dealt with firmly with firm hands and not leniently. The respondent No.1 misappropriated panchayat fund, therefore, highest degree of integrity and trustworthiness is must. The learned appellate authority has found that no show cause notice was issued and order was passed in violation of the principle of natural justice, but without remitting the matter allowed the appeal and set aside the order dated 21.11.2005 which is not proper. 13. This Court by order dated 15.1.2007 granted stay and stayed the operation of the impugned order Annexure P-1 dated 19.10.2006 until further orders. Considering the above, the respondent No.2 Collector is directed to give opportunity of hearing to the petitioner and decide the same afresh within a period of three months from the date of filing of certified copy of this order. In the meanwhile, or till the final order is passed by the respondent No.2, the stay granted by this Court on 15.1.2007 shall continue. In the result the impugned order Annexure P-1 dated 19.10.2006 is partly modified to the extent as indicated above and the petition filed by the petitioner is allowed in part with the aforesaid. No costs.