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Madhya Pradesh High Court · body

2013 DIGILAW 760 (MP)

Guddi Devi v. State of M. P.

2013-07-04

S.K.Gangele

body2013
ORDER 1. The petitioner has filed this petition against the order date16.12.2011 (Annexure P/1) passed by the Collector Datia and also against the order dt.27.3.2012 (Annexure P/2) passed by the Commissioner, Chambal Division, Morena, by which the appeal filed by the petitioner against the order dt.16.12.2011 has been dismissed. 2. The petitioner was elected as Member of Janpad Panchayat Morena. A show cause notice was issued to the petitioner under section 40 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as ‘Adhiniyam 1993’) that why she should not be removed from the post. It is mentioned in the show cause notice that husband of the petitioner in a meeting held on 28.2.2011 quarreled with Chief Executive Officer Janpad Panchayat Morena. He had also behaved unruly with him. The petitioner denied the allegations of show cause notice. Thereafter, evidence was recorded and the Collector by the impugned order date16.12.2011 removed the petitioner from the post of Sarpanch. It is mentioned in the order that on 28.2.2011 husband of the petitioner Suresh Singh had misbehaved with the officers, he had used unparliamentary language and also he created noisy scene due to which honour of the Janpad Panchayat was downgraded. Against the aforesaid order, an appeal was filed by the petitioner, which was dismissed. 3. Section 40 of the Adhiniyam 1993 prescribes disqualification, which is as under :- “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 harmony 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 this 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 giving 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, fatherin- 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 inquiry 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 under this Act.” 4. From the perusal of the aforesaid section, it is clear that the disqualification under the aforesaid section would incur if the conduct of the person who holds the post is unlawful. In the present case, the allegation is that the conduct of the husband of the petitioner was unlawful. Hence, in my opinion, the petitioner could not be disqualified on this ground. 5. Hon’ble Supreme Court in the case of Ravi Yashwant Bhoir v. Collector reported in (2012) 4 SCC 407 has held as under in regard to misconduct of duly elected persons :- “The expression “misconduct” has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour, wilful in character. It may be synonymous as misdemeanour in propriety and mismanagement. Further, the expression “misconduct” has to be construed and understood in reference to the subjectmatter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed. It may be synonymous as misdemeanour in propriety and mismanagement. Further, the expression “misconduct” has to be construed and understood in reference to the subjectmatter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed. Misconduct is to be measured in the terms of the nature of misconduct and it should be viewed with the consequences of misconduct as to whether it has been derimental to the public interest. An action which is detrimental to the prestige of the institution may also amount to misconduct. Acting beyond authority may be a misconduct. When the office-bearer is expected to act with absolute integrity and honesty in handling the work, any misappropriation, even temporary, of the funds, etc. constitutes a serious misconduct, inviting severe punishment. However, conclusions, about the absence or lack of personal qualities in the incumbent do not amount to misconduct holding the person concerned liable for punishment. Mere error of judgment resulting in doing of negligent act does not amount to misconduct. But, in exceptional circumstances, not working diligently may be a misconduct. In a particular case, negligence or carelessness may also be a misconduct.” Hon’ble Supreme Court further observed that duly elected member could not be removed in a casual and cavalier manner. The observations of the Supreme Court are as under :- “The duly elected member/Chairman of the Council could not have been removed in such a casual and cavalier manner without strict adherence to the safeguards provided under the statue which had to be scrupulously followed. Thus, the instant case is a crystal clearcut case of legal malice and therefore, the impugned orders are liable to be quashed.” 6. In this view of the matter, petition of the petitioner is allowed. The impugned orders dt.16.12.2011 (Annexure P/1) and dt.27.3.2012 (Annexure P/2) are hereby quashed. Looking to the facts of the case, in my opinion, the petitioner is also entitled costs of Rs.5,000/-.