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2009 DIGILAW 1065 (PAT)

Navin Thakur v. State Of Bihar

2009-08-11

AJAY KUMAR TRIPATHI

body2009
JUDGEMENT 1. Initially when the writ application was filed by the petitioner he was erstwhile Mukhiya of Jajuar village in the district of Muzaffarpur. The challenge was to the notice issued by the Director, Panchayat Raj under Section 18(5) of the Bihar Panchayat Raj Act, 2006. But during the pendency of the writ application a final order removing the petitioner from the post has been passed by the Principal Secretary, Panchayati Raj, Govt. of Bihar, which is dated 18.3.2009 and is also now under challenge by way of I.A. No. 1812 of 2009. The impugned order, therefore, is Annexure-5. 2. Section 18(5) of the Act states as under:- "Without prejudice to the provisions under this Act, if, in opinion of the Commissioner having territorial jurisdiction over the Gram Panchayat, a Mukhiya or an Up-Mukhiya of Gram Panchayat absents himself without sufficient cause for more than three consecutive meetings or sittings or willfully omits or refuses to perform his duties and functions under this Act, or abuses the power vested in him or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the Commissioner may, after giving the Mukhiya or Up-Mukhiya a reasonable opportunity for explanation, by order, remove such Mukhiya or Up-Mukhiya, as the case may be, from office. The Mukhiya or Up-Mukhiya so removed shall not be eligible for re-election as Mukhiya or Up-Mukhiya or Member of Gram Panchayat during the remaining term of office of such Gram Panchayat." 3. It is an exercise of power above, as per the amended Act, the Principal Secretary, Panchayati Raj, Govt. of Bihar has ousted the petitioner from the post of Mukhiya for the so-called abuse of power vested in him. 4. Submission of the learned counsel for the petitioner is that the origin to the whole dispute was an application filed before the State Information Commission by one Nilu Jha. During the course of hearing on the question of information the Information Commission went to the extent of directing action to be taken against certain persons who were coming in the way of providing such information. During the course of hearing on the question of information the Information Commission went to the extent of directing action to be taken against certain persons who were coming in the way of providing such information. Based on the opinion or the direction of the Information Commission, the Director, Panchayati Raj decided to issue a notice to this petitioner as to why he should not be removed in exercise of power vested in the State Government under Section 18(5). 5. Show cause was filed, matter was looked into and thereafter enquiry was held at the level of Special Secretary-cum-Director (Primary Education), who submitted a report which has been brought on record as Annexure-10. The allegation made by Nilu Jha against the said selection was not found to be borne out. There is a categorical finding in this regard, which is evident from the concluding part of the report (Annexure-10). The Special Secretary, however, was of the opinion that the appointments which were made on the post with regard to two of the teachers for the Panchayat in question did not seem to be in order. 6. Based on the finding of the Special Secretary, a proceeding under Section 18(5) of the Act was initiated and the impugned order came to be passed. 7. Learned counsel for the petitioner submits that there is no independent application of mind by the Principal Secretary, Panchayat Raj before passing of the order under challenge. A mere perusal of the impugned order would show that there are primarily two materials based on which the conclusion has been reached. One is that there was an enquiry held at the instance of Information Commission and two that Special Secretary came to a conclusion that even though the allegation made by Nilu Jha was not correct, at least appointments of two teachers were also not in order. This, according to the Principal Secretary, amounted to the basis to hold that the petitioner as a Mukhiya had abused the power vested in him or has been found to be guilty of misconduct in discharge of his duties. 8. The Court has been taken through not only the order of the Information Commission but also the finding which has been recorded by the Special Secretary in Annexure-10. 8. The Court has been taken through not only the order of the Information Commission but also the finding which has been recorded by the Special Secretary in Annexure-10. Based on the findings which have been recorded, counsel for the petitioner asserts that none of the findings, can be said to be of the kind which establishes abuse of power because to urge and hold abuse of power a higher order of finding has to be recorded. Merely because there is an opinion of the Special Secretary that appointments of two teachers in the Panchayat were not in consonance with the rules, at the best it can be said that there could have been error in decision making process. But to allege that there is misuse of power, something more needs to be established as the power vested in the State Government under Section 18(5) of the Act cannot be casually exercised to remove a duly elected representative in such a callous manner. 9. Learned counsel representing the State submits that the findings are what they are and if the appointments of two teachers were not found" to be valid then there is underlying presumption that there has been an abuse of the power vested in the petitioner. 10. Counsel for the Information Commission has also her submission in the matter but the same has no relevance because so far as deciding the issue of exercise of power under Section 18(5) is concerned, the role of the Information Commission is suspect to the extent that same cannot be made a foundational fact without verifying the actual state of affairs. It is yet another issue whether Information Commission had the necessary power to order such an enquiry pursuant to the information which was sought by the applicant. Since that is not the issue matter is left open at this stage. 11. Having taken into consideration the rival contentions and the materials which have been brought on record the Court is constrained to record that the Principal Secretary, Panchayat Raj, Govt, of Bihar, has taken an easy out of putting two diverse materials and recording a finding of guilt against the petitioner, as if, that is enough in the present matter. 11. Having taken into consideration the rival contentions and the materials which have been brought on record the Court is constrained to record that the Principal Secretary, Panchayat Raj, Govt, of Bihar, has taken an easy out of putting two diverse materials and recording a finding of guilt against the petitioner, as if, that is enough in the present matter. As already recorded in the earlier part of the order, the Principal Secretary should have categorically recorded those materials and evidence which, according to him, amounted to abuse of power by the petitioner. Even when the enquiry officer namely, the Special Secretary has not gone to the extent of holding that the petitioner was responsible for irregular or illegal appointments, then it is not understood as to how Principal Secretary has concluded that the allegation must rest at the door of the petitioner. Obviously, the reasoning and the conclusion reached by the Principal Secretary do not establish the guilt of the petitioner to the extent where he has to be removed in exercise of power under Section 18(5) of the Act. 12. Learned counsel for the petitioner, however, submits that he is not willing to push the matter beyond a certain point in view of the subsequent developments that vacancy caused by the impugned order stands filled up by a subsequent election. He, therefore, confines his prayer to declaring the impugned order to be bad only to reestablish his prestige and the illegality and unfairness which has accrued due to the illegal order in question. 13. Keeping the above in mind no consequential order is being passed but the impugned order, contained in Annexure-5, dated 18.3.2009 stands quashed. 14. The writ application is allowed.