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Madhya Pradesh High Court · body

2011 DIGILAW 513 (MP)

Omkar Singh v. State of M. P.

2011-04-28

R.S.JHA, S.R.ALAM

body2011
JUDGMENT : S.R. Alam, J. - In the instant petition, the petitioner who is a Janpad Member of the Janpad Panchayat Karkeli, District Umaria, has sought quashing of the direction given in para 5 of the order of the Commissioner Rewa Division dated 7.12.2007. 1. It appears that the petitioner was an accused in a Crime Case No. 160/06 under Sections 395,458 and 379/34 of the Indian Penal Code and under Section 25/27 of the Arms Act, registered at Police Station Kuthla, District Katni, and, therefore, he was not able to attend the meetings of the Janpad Panchayat. Consequently, the Col­lector (respondent No.3) issued a show cause notice dated 14.8.2007 to the peti­tioner under Section 36(1) of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the Act of 1993 for short) as to why he should not be placed under suspension un­der the provisions of the Act. He accord­ingly submitted his reply on 17.9.2007 stat­ing that in the aforesaid criminal case, he has been acquitted by the Court vide judg­ment dated 13.6.2007 and since then he is continuously attending the meetings of the Janpad Panchayat. The Collector, however, after considering his show cause, sus­pended him with immediate effect vide or­der dated 28.9.2007 in exercise of the power under Section 39(1) of the Act from the membership of the Janpad Panchayat. 2. The aggrieved petitioner thereafter went in appeal before the Commissioner, the respondent No.2. The Commissioner found that the notice calling upon the peti­tioner to give show cause was issued un­der Section 36(1) of the Act, whereas, the order suspending him as an office bearer of the Panchayat was passed under Section 39(1) of the Act, hence, set aside the same and remitted back the matter to the Collec­tor to proceed afresh in accordance with law under Section 36 of the Act. The petitioner is aggrieved by that part of the order of the Commissioner whereunder the Collector has been asked to proceed against the peti­tioner under Section 36 of the Act instead of Section 39(1). 3. Learned counsel for the petitioner, ve­hemently, sought to argue that both the Commissioner and the Collector failed to appreciate that before initiation of the proceedings under the Act of 1993, the peti­tioner was already acquitted from the charges and, thus, the impugned notice and the proceedings initiated after his acquittal cannot be allowed to proceed. 4. 3. Learned counsel for the petitioner, ve­hemently, sought to argue that both the Commissioner and the Collector failed to appreciate that before initiation of the proceedings under the Act of 1993, the peti­tioner was already acquitted from the charges and, thus, the impugned notice and the proceedings initiated after his acquittal cannot be allowed to proceed. 4. We have considered the submission of learned counsel and do not find any merit in the same. 5. Admittedly, the petitioner has been acquitted by giving him benefit of doubt for committing an offence under Sections 395 and 397 of the Indian Penal Code. However, it also appears that the petitioner could not attend the meetings of the Janpad Panchayat with effect from 31.5.2006 to 30.5.2007 i.e. about one year despite receipt of information of the meeting because he was in jail in connection with the aforesaid criminal case. From a reading of the provi­sions contained in Section 36(2) (c) of the Act, it is apparent that if an office bearer absents himself from three consecutive meetings of the Panchayat or its Commit­tee or does not attend half the number of meetings held during the period of six months without the leave of the Panchayat, he shall subject to Sub-section (3) of Sec­tion 36, cease to be such office bearer and his office shall become vacant. 6. Thus, if an office bearer of a Panchayat fails to attend the three consecutive meet­ings of the Panchayat or its Committee or 50% of the meetings held during the pe­riod of six months without taking leave of the Panchayat, shall cease to be an office bearer and his office shall be deemed to be vacant subject to decision of the Collector or the Commissioner as the case may be under sub- section (3) of Section 36 of the Act. However, no such order declaring such vacancy shall be passed under the afore­said provision without affording a reason­able opportunity of hearing to such office bearer. However, where the office bearer informs the Panchayat seeking leave for such absence and the Panchayat fails to in­form the applicant of its decision within a period of one month from the date of re­ceipt of such application, it shall be deemed that the leave sought has been granted by the Panchayat. However, where the office bearer informs the Panchayat seeking leave for such absence and the Panchayat fails to in­form the applicant of its decision within a period of one month from the date of re­ceipt of such application, it shall be deemed that the leave sought has been granted by the Panchayat. In the case in hand, no ma­terial has been brought on record to show that the petitioner attended all the meetings of the Janpad Panchayat and the allegation that he failed to attend three consecutive meetings of the Panchayat is false. On the contrary, from the impugned orders of the Collector and the Commissioner, it appears that the stand of the respondents before them were that he did not attend the meet­ings from 31.5.2006 to 30.5.2007 and, thus, incurred disqualification. Therefore, we are of the view that the Commissioner has rightly remitted back the matter to the Col­lector to give a specific finding and pass an appropriate order under Section 36 of the Act instead of Section 39(1). Section 39(1) provides about the suspension of an office bearer of Panchayat, who is facing criminal charges under Chapter V-A, VI, IX, IXA, X, XII, Section 302, 303, 304-B, 305, 306, 312 to 318, 366-A, 366-B, 373 to 377 of Chapter XVI, Section 395 to 398, 408, 409, 458 to 460 of Chapter XVII and Chapter XVIII of the 4 7. Indian Penal Code, 1860 (XLV of 1860) or under any Law for the time being in force for the prevention of adulteration of food stuff and drugs, (suppression of immoral traffic in women and children, protection of civil rights and Prevention of Corruption). Since the petitioner has al­ready been acquitted from the criminal charges, therefore, he could have been pro­ceeded only under Section 36 of the Act of 1993 for his absence in three consecutive meetings of the Panchayat as provided un­der Section 36(2)(c) of the Act of 1993. Be­sides, the notice having been issued for ini­tiation of proceedings under Section 36 of the Act, the Collector could not have passed the order under Section 39(1) of the Act suspending the petitioner from the mem­bership of the Janpad Panchayat. 8. We, therefore, do not find any fault in the order of the Commissioner. Be­sides, the notice having been issued for ini­tiation of proceedings under Section 36 of the Act, the Collector could not have passed the order under Section 39(1) of the Act suspending the petitioner from the mem­bership of the Janpad Panchayat. 8. We, therefore, do not find any fault in the order of the Commissioner. However, the Collector shall proceed pursuant to the order of the Commissioner in accordance with law without being prejudiced or in­fluenced with the observations made in this order and decide the matter on the basis of the evidence and the material on record by a reasoned order. The writpetilion, accordingly, stands dismissed.