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2014 DIGILAW 1079 (MP)

Chandrakanta Bai v. State of M. P.

2014-08-28

M.C.GARG, SHANTANU KEMKAR

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ORDER Kemkar, J. -- 1. This writ appeal under section 2 of the Madhya Pradesh Uchacha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 (for short “the Act”), is directed against the order dated 3.3.2014 passed by the learned Single Judge of this Court in W.P. No.1630/2014. 2. Brief facts necessary for the disposal of this appeal are that appellant/writ petitioner was elected in the year 2009 as Sarpanch of the Gram Panchayat Iklera, Distt. Rajgarh. On receipt of a complaint against her, a show cause notice dated 18.2.2013 under section 40 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 was issued to her by the Sub-Divisional Officer. She submitted reply of the said show cause notice denying the allegation levelled against her. However, without giving proper opportunity to defend, the SDO proceeded ex-parte against her in the enquiry and held her guilty of the misconduct, as a result she was removed vide orders dated 11.10.2013 from the post of Sarpanch. 3. Feeling aggrieved, the appellant had filed Writ Petition No.12816/2013. The said writ petition was disposal of by the learned Single Judge vide order dated 29.10.2013. He quashed the order dated 11.10.2013 passed by the SDO placing reliance on the order passed by this Court in the case of Kailash Kumar Parmanand Dangi v. State of M.P. and others [ 1999(2) JLJ 280 = 1999(2) MPLJ 722 ]. The learned Single Judge sent the matter back to the SDO to take fresh decision within three months after holding a summary enquiry against the appellant. 4. In pursuance to the aforesaid order passed in Writ Petition No.12816/2013, the SDO conducted the enquiry and vide order dated 21.2.2014 directed removal of the appellant from the post of Sarpanch and also debarred her from contesting the election for next five years. 5. Aggrieved by the order dated 21.2.2014 passed by the SDO, the appellant once again approached this Court by filing W.P. No.1630/2013. 5. Aggrieved by the order dated 21.2.2014 passed by the SDO, the appellant once again approached this Court by filing W.P. No.1630/2013. However, this time the learned Single Judge, although, referred the order passed by this Court in the case of Kailash Kumar Parmanand Dangi (supra) the orders passed in the cases of Manita Jaiwar (Smt.) v. State of M.P. and others, reported in 2009(2) JLJ 333 = 2009(3) MPHT, 70 and in Kailashchandra Jain v. State of M.P. and others, reported in 2002(5) MPHT 524 , declined to interfere into the order dated 21.2.2014 passed by the SDO, Sarangpur on the ground that the appellant petitioner has got an alternative remedy of challenging the order of the SDO before the appellate authority. 6. Shri Akash Rathi, learned counsel for the appellant has argued that since the order passed by the SDO was in utter violation of the principles of natural justice, the writ Court should have interfered in the order and the writ petition should not have been dismissed on the ground of availability of alternative remedy. He submits that SDO has recorded the finding of guilt against the appellant without recording the evidence. He also submits that since the order of the SDO is contrary to the settled legal position as per the various decisions of this Court including in the case of Smt. Phoolbai v. State of M.P., 2009(1) JLJ 437 = 2009(2) MPHT, 68; Kailashchandra Jain v. State of M.P. and others (supra) Manita Jaiwar (Smt.) v. State of M.P. and others (supra); Babita Lilhara v. Surendra Rana, 2004(1) MPLJ, 27 and Kailash Kumar Dangi v. State of M.P. (supra), the writ Court should have interfered in the matter instead of dismissing the writ petition on the ground of availability of alternative remedy. 7. On the other hand, Shri A. K. Sethi, learned Senior Counsel has supported the impugned order. He argued that since in the earlier round of litigation the writ Court vide order dated 29.10.2013 has directed the SDO to take fresh decision with in a specified time of 3 months by holding summary enquiry the SDO has committed no error in passing the impugned order after considering the reply to show cause notice. 8. He argued that since in the earlier round of litigation the writ Court vide order dated 29.10.2013 has directed the SDO to take fresh decision with in a specified time of 3 months by holding summary enquiry the SDO has committed no error in passing the impugned order after considering the reply to show cause notice. 8. On going through the impugned order dated 21.2.2014, it is manifestly clear that the appellant, though, specifically made a request to record the evidence about the alleged misconduct, but her prayer was turned down by the SDO by observing thus :- ^^8- mHk;i{kksa ds }kjk izLrqr rdks± ds Jo.k fd, tkus ds nkSjku vukosnd vfHkHkk”kd }kjk lk{; cqykbZ tkdj lk{; ds vk/kkj ij izdj.k esa eq[; dk;Zikyu vf/kdkjh] tuin iapk;r ujflagx<+ }kjk Vhe xfBr dj vfHkys[k ds vk/kkj ij foLr`r tk¡p izfrosnu izLrqr fd;k x;k gS] bl izdkj vfHkys[kh lk{; izekf.kr gks tkus ls izdj.k esa i`Fkd ls lk{; fy, tkus dk vkSfpR; ugha gksus ls vukosnd vfHkHkk’kd }kjk izLrqr vkosnu i= fujLr fd;k tkdj izdj.k ds vkèkkj ij vkns’k gsrq fu;r fd;k x;kA** 9. It is also relevant from the order-sheet dated 10.2.2014 that the SDO had called report on 10.2.2014. And on that day itself the report of the Chief Executive Officer was received and thereafter without supplying copy of it to the appellant, the SDO proceeded in the matter and recorded the finding of guilt against the appellant vide impugned order. 10. Keeping in view the manner in which the SDO had proceeded in the enquiry as also the fact that in spite of specific request being made by the appellant, the evidence of the witnesses were not recorded in the enquiry and no opportunity of cross examination was afforded to the appellant, in our considered view, there is clear violation of the principles of natural justice in deciding the matter against the appellant. Merely because in W.P. No.12816/2013 this Court had directed to hold summary enquiry and fixed time limit for deciding the matter does not mean that the SDO could have acted in violation of the principles of natural justice by not adhering to the settled legal principles. If the time limit fixed in W.P. No.12816/2013 was expiring, the SDO could have sought for extension of time from this Court. 11. If the time limit fixed in W.P. No.12816/2013 was expiring, the SDO could have sought for extension of time from this Court. 11. It is now well settled that the enquiry under section 40 of the Act is not an empty formality. There should be compliance of necessary provisions and person should be punished legally. In Manita Jaiwar (supra), a Division Bench of this Court after considering various earlier pronouncements of this Court has held that before removal of Sarpanch of Gram Panchayat principles of natural justice have to be followed. The Division Bench noticing the fact that no witnesses of preliminary enquiry, including the complainant were examined and naturally no opportunity to cross examine them was also afforded to the Sarpanch and she was also not afforded opportunity to adduce her evidence against the charges levelled against her, held that as no due and proper enquiry was conducted by the SDO before ordering removal of petitioner Sarpanch, the order is vitiated. The Division Bench then remitted the matter back to the SDO to conduct proper enquiry. 12. In the circumstances, in our considered view, as there was clear violation of the principles of natural justice on the part of the SDO and the order of the SDO also being against the various pronouncements of this Court, the learned Single Judge should have interfered into the matter instead of relegating the appellant to the appellate authority before whom also no useful purpose would have been served as in the matter no evidence was recorded by the SDO. The Supreme Court in the case of Harbanslal v. Indian Oil Corporation, (2003)2 SCC, 107 has observed that in case of failure of principles of natural justice, availability of alternate remedy is not a bar for entertaining a writ petition under Article 226 of the Constitution of India. 13. Having regard to the aforesaid, the appeal succeeds and is hereby allowed. The impugned orders passed by the SDO and the learned Single Judge are hereby set aside. The matter is remitted to the SDO for holding fresh enquiry within four months. The SDO is directed to examine the witnesses and afford opportunity to the appellant to cross examine the said witnesses and to adduce her evidence against the charges levelled against her. The matter is remitted to the SDO for holding fresh enquiry within four months. The SDO is directed to examine the witnesses and afford opportunity to the appellant to cross examine the said witnesses and to adduce her evidence against the charges levelled against her. Copy of the report received from Chief Executive Officer be also supplied to the appellant, if it is to be utilized against her. Thereafter a reasoned order be passed by the SDO in accordance with law. 14. During the period enquiry, as aforesaid, is conducted and findings are recorded, the appellant shall be allowed to continue on the post of Sarpanch. However, she shall not be allowed to exercise the financial powers till the matter is decided by the SDO as we find during all this period of litigation such powers were withheld by this Court by interim orders. 15. No orders as to the costs.