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Madhya Pradesh High Court · body

2012 DIGILAW 185 (MP)

Maya Choudhary v. State Of M. P.

2012-02-09

K.K.TRIVEDI

body2012
Judgment ( 1. ) BY this petition the petitioner has called in question the order dated 27-10-2010 Annexure P-1, passed by the Sub Divisional Officer, Revenue Tehsil Nagod, District Satna and order dated 10-1-2011 passed by the Collector, Satna. BY earlier order the petitioner has been removed from the post of Sarpanch, in exercise of power under section 40 of the M. P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, (hereinafter referred to as 'Act'). BY later order the appeal preferred by the petitioner against the said order has been dismissed. The contention of the petitioner is that she was elected as a Sarpanch of Gram Panchayat Umari (Brajnandan), Tehsil Nagod, District Satna on 11-2-2010. However, since she was not being delivered the charge of the post by the Ex-Sarpanch she made a complaint before the Chief Executive Officer, Janpad Panchayat Nagod, District Satna as also before the Sub Divisional Officer, Revenue Nagod, District Satna on 17-2-2010. It is the contention that on the applications made by the petitioner since no action was taken, ultimately she filed an applications under section 92 of the Act on 24-2-2010 before the Sub Divisional Officer (Revenue) Nagod. The proceedings were initiated on the basis of making of such an application by the petitioner, notices were issued to the non-applicants by the Sub Divisional Officer and their replies were received. It is the contention of the learned counsel for the petitioner that since such complaint was made, the authorities have started acting against the petitioner mala fidely and issued show cause notice to the petitioner calling her explanation as to why the petitioner should not be removed from the post of Sarpanch. She made an application and also filed a revision before the Collector against the said show cause notice. Since nothing was done in that matter, revision was not decided, the petitioner made the application before the Sub Divisional Officer again for taking action against the Secretary of Gram Panchayat. It is the contention of the learned counsel for the petitioner that some order was issued by the Zila Panchayat with reference to one memo issued by the Commissioner, Rewa to make appropriate arrangement of a substitute of the Panchayat Secretary. It is contended that because of these reasons, the order was passed on 27-10-2010 against the petitioner and she has been removed from the post. It is contended that because of these reasons, the order was passed on 27-10-2010 against the petitioner and she has been removed from the post. Since the removal order was issued by the Sub Divisional Officer, the same was called in question by filing an appeal before the Collector, Satna but the same has been dismissed therefore, this writ petition has been filed. It is contended that the action was improperly initiated against the petitioner though the complaint was made by the petitioner against the then Secretary of the Gram Panchayat, who was not co-operating with the petitioner to take over the charge of the post. It is contended that such an order being passed on mala fide action of the authorities is liable to be quashed. ( 2. ) THE respondents in response to the notice of writ petition have filed their return and have contended that action was rightly taken against the petitioner as she was not discharging her duties as Sarpanch in the Gram Panchyat. It is contended that after making an enquiry the Chief Executive Officer has given a report that the petitioner was not complying with the directions of the authorities of taking over the charge or opening the joint account for the purposes of distribution of pension to the disabled and elderly persons. These being the reasons, it was said that the petitioner was not entitled to continue on the post of Sarpanch. It is further contended that the show cause notice was issued to the petitioner as provided under section 40 of the Act and thereafter the order was passed after extending opportunity of hearing to the petitioner. Thus it is contended that the petition is misconceived and merits dismissal. ( 3. ) THE intervenor has a very limited role in the present petition and since the intervenor was authorized to function as ad hoc Sarpanch till the elections are held, the prayer is made to grant permission to oppose the petition. ( 4. ) HEARD learned counsel for the parties at length and perused the record. ( 5. ) THE order passed by the Sub Divisional Officer is in a proceedings said to be initiated under section 92 of the Act by making an application by the petitioner herself. THE provisions of section 92 of the Act are quoted here in below for the purposes of convenience : "92. ( 5. ) THE order passed by the Sub Divisional Officer is in a proceedings said to be initiated under section 92 of the Act by making an application by the petitioner herself. THE provisions of section 92 of the Act are quoted here in below for the purposes of convenience : "92. Power to recover records articles and money. - (1) Where the prescribed authority is of the opinion that any person has unauthorizedly kept in his custody any record or article or money belonging to the Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha), he may, by a written order, require that the record or article or money be delivered or paid forthwith to the Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha), in the presence of such officer as may be appointed by the prescribed authority in this behalf. (2) If any person fails or refuses to deliver the record or article or pay the money as directed under sub-section (1) the prescribed authority may cause him to be apprehended and may send him with a warrant in such form as may be prescribed, to be confined in a Civil Jail for a period not longer than thirty days. (3) THE prescribed authority may - (a) for recovering any such money direct that such money be recovered as an arrear of land revenue; and (b) for recovering any such record or articles issue a search warrant and exercise all such powers with respect thereto as may lawfully be exercised by a Magistrate under the provisions of Chapter VII of the Code of Criminal Procedure, 1973 (No. 2 of 1974). (4) No action under sub-section (1) or (2) or (3) shall be taken unless a reasonable opportunity has been given to the person concerned to show cause why such action should not be taken against him. (4) No action under sub-section (1) or (2) or (3) shall be taken unless a reasonable opportunity has been given to the person concerned to show cause why such action should not be taken against him. (5) A person against whom an action is taken under this section shall be disqualified to be member of any Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or Committee of Gram Sabha) for a period of (six) years commencing from the initiation of such action." In the said proceedings the reply was filed by the non-applicants and they made allegations that the petitioner was not performing her duties, was not complying with the order of the competent authority for opening the joint account. In that very same proceedings the show cause was issued to the petitioner as provided under section 40 of the Act and final order was passed in the very same proceedings. ( 6. ) THE proceedings as were required to be initiated under section 40 of the Act are totally different, wherein an enquiry is required to be conducted in different manner. For the purposes of convenience and understanding the difference in two provisions of the Act, section 40 of the Act is quoted below :- "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, remove 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 hormony and the spirit of common brotherhood amongst all the people of State transcending religious, linguistic, regional, caste or sectional diversities; or (iii) the dignity of women ; or (b) gross negligence in the discharge of the duties under the Act. [(c) the use of position or influence directly or indirectly to secure employment for any relative in the Panchayat or any action for extending any pecuniary benefits to any relative, such as given out any type of lease, getting any work done through them in the Panchayat by an office bearer of Panchayat. Explanation. - For the purpose of this clause the expression 'relative' shall mean father, mother, brother, sister, husband, wife, son, daughter, mother-in-law, father-in-law, brother-in-law, sister-in-law, son- in-law or daughter-in-law:] (Provided further that the final order in the inquiry shall be passed within 90 days from the date of issue of show cause notice to the concerned office bearer and where the pending case is not decided within 90 days, the prescribed authority shall inform all facts to his next senior officer in writing and request extension of time for disposal of the enquiry but such extension of time shall not be more than 30 days,) (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 (x x x) under this Act." A bare perusal of the two provisions aforesaid will make it clear that an enquiry which was to be conducted under section 40 of the Act is totally different. THE show cause notice required to be issued under the said proceedings is to reflect the charges on the basis of which the proceedings are started under section 40 of the Act as it has been categorically provided that the office bearer of a Panchayat can be removed at any time :- "(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." ( 7. ) THE show cause issued in this case to the petitioner, simply says that proceedings are initiated under section 40 of the Act. If any preliminary enquiry is conducted with respect to alleged misconduct, this fact is also required to be mentioned in the show cause notice so that person concerned may defend himself/herself properly. ) THE show cause issued in this case to the petitioner, simply says that proceedings are initiated under section 40 of the Act. If any preliminary enquiry is conducted with respect to alleged misconduct, this fact is also required to be mentioned in the show cause notice so that person concerned may defend himself/herself properly. Such a person is also required to extend an opportunity of putting documentary and oral evidence also in rebuttal of such a preliminary enquiry report if the same is demanded. This will also be necessary because the order of removal of an elected office bearer is also a penal provision contained in section 40 of the Act, and an elected office bearer of Panchayat elected by people is not to be branded unceremoniously. Only after completing the proceeding in this manner for the purposes of reaching to definite findings, whether any misconduct or other contingency mentioned in the provisions of section 40 of the Act is made out or not, the order can be passed by the prescribed authority. If it is not done, the proceedings under section 40 of the Act would be vitiated. ( 8. ) THE proceedings under section 92 of the Act are quite different than that of section 40 of the Act. Under section 92 of the Act the persons in whose possession the documents are required to be recovered are, is to be asked to deliver the said documents and on failure of the compliance of the said order the consequence are given under sub-section (2), (3), (4) and (5) of section 92 of the Act. No detail enquiry in that respect is required nor any recording of evidence is needed. In view of this, there is a total difference in the manner of conducting enquiries under the aforesaid two provisions. ( 9. ) FROM the aforesaid, it is also clear that the legislature was not indicating that the two enquiries be clubbed together which are to be conducted under section 40 and 92 of the Act. By notification the State Government has authorized only one authority to act as prescribed authority under the aforesaid two sections, but it will not meant that the said authority can take an action of removal of a Sarpanch of the Gram Panchayat in the proceedings which are initiated under section 92 of the Act. By notification the State Government has authorized only one authority to act as prescribed authority under the aforesaid two sections, but it will not meant that the said authority can take an action of removal of a Sarpanch of the Gram Panchayat in the proceedings which are initiated under section 92 of the Act. If the continuance of the petitioner as office bearer of the Panchayat was not desirable in view of the report received by him, the prescribed authority could have initiated the proceedings separately by issuing the show cause notice to the petitioner calling her explanation indicating such a misconduct and after completing the enquiry as provided under section 40 of the Act, could have passed an order. The application made by the petitioner under section 92 of the Act was required to be rejected/dismissed, but for any reason the order under section 40 of the Act could not have been passed in that proceedings, that too without following the procedure of enquiry prescribed under section 40 of the Act. Since such impugned order has been passed in a proceedings initiated on the complaint made by the petitioner under section 92 of the Act and the power under section 40 of the Act have been exercised by the Sub Divisional Officer, the order impugned cannot be sustained nor can be given a stamp of approval by this Court. ( 10. ) CONSEQUENTLY, the writ petition succeeds and is hereby allowed. The order dated 27-10-2010, Annexure (P-1) is hereby quashed. The petitioner be permitted to take over the charge as Sarpanch of the Gram Panchayat concerned immediately. However, it will be open to the respondents authorities to initiate the proceedings under section 40 of the Act against the petitioner by giving her a Show cause notice afresh and after completing the required enquiry, to pass a fresh order in the said proceedings as per the law. ( 11. ) WITH the aforesaid, the writ petition is allowed to the extent indicated hereinabove. There shall be no order as to costs. Petition allowed.