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2011 DIGILAW 320 (PAT)

Pancha Nand Singh v. State of Bihar

2011-02-25

body2011
ORDER Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner is the elected Mukhiya of Gram Panchayat- Madrauni, P.S. Gopalpur, District- Bhagalpur, aggrieved by the order dated 3.11.2010 under Section-18(5) of the Bihar Panchayat Raj Act (hereinafter referred to as the Act) passed by the Principal Secretary, Panchayati Raj unseating him from that post. 3. Relying on AIR 2001 S.C. 2524 (Tarlochan Dev Sharma Vs. State of Punjab) learned counsel submits that the solitary charge relates to one transaction of nine wrong appointment of Panchayat Teachers broken up into four sub-charges. This solitary charge cannot be considered to be a misconduct under paragraph-10 of the aforesaid judgement. He next submits that the impugned order is unreasoned and non-speaking. 4. Learned counsel for the State submits that a reading of charge Nos.3 and 4 reflects that the petitioner grossly abused his powers as a Mukhiya and committed serious misconduct when he belied the trust placed in him by illegal appointment of his son. 5. Notwithstanding the judgement in the case of Tarlochan Dev Sharma (supra) relied upon by the petitioner and that the order does not appear to be containing reasons and a discussed consideration if it had recorded a positive finding that Shri Karn Kumar Singh was the son of the petitioner, the Court in its discretionary jurisdiction may have dismissed the petition. But even that aspect of the matter has been left inconclusive by the Principal Secretary. 6. That shall therefore bring to the fore the two legal issues raised on behalf of the petitioner- one covered by a Supreme Court judgement and the other covered by a long series of decisions that any administrative order' having civil consequences and non-speaking in :nature is not sustainable. The Principal Secretary notices the charge, the defence of the petitioner, the response of the District Magistrate to the cause shown, but without disclosing his own reasoning or application of independent mind arrives at an abrupt conclusion that the charge stood proved. There is no discussion displaying the application of mind to issue followed by a finding by the Principal Secretary independently. 7. The impugned order dated 3.11.2010 is not sustainable. Reference may further be made to the following extract of paragraph-15 from the case of Tarlochan Dev Sharma (supra) which reads as follows:- "15. There is no discussion displaying the application of mind to issue followed by a finding by the Principal Secretary independently. 7. The impugned order dated 3.11.2010 is not sustainable. Reference may further be made to the following extract of paragraph-15 from the case of Tarlochan Dev Sharma (supra) which reads as follows:- "15. In the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja (1995) 5 SCC 302 : (1995 AIR SCW 3543 : AIR 1995 SC 2390 ), this Court has held that a statutory authority vested with Jurisdiction must exercise it according, to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercised discretion altogether. Observations of this Court in the Purtabpur Company Ltd., AIR 1970 SC 1896 , are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal Judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under S. 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under S. 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue." 8. The order dated 3.11.2010 is set aside. The application is allowed.