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2017 DIGILAW 274 (MP)

Narendra Pandey v. State of M. P.

2017-02-20

S.A.DHARMADHIKARI, SHEEL NAGU

body2017
JUDGMENT Nagu, J--1. Both these writ appeals involving common questions of law and based on more or less similar foundational facts have been heard together and are decided by this common order. 1.1 At the very outset it is pertinent to mention that the only difference between the two appeals is that in Writ Appeal No. 359/16 the basic impugned show cause notice before the writ Court had not been responded to by way of reply while in Writ Appeal No. 294/2016 the petitioner appellant has filed reply to impugned show cause notice. Moreso Writ Appeal No. 359/2016 is by a former Sarpanch of Gram Panchayat whereas Writ Appeal No. 294/2016 is by a former Secretary of Gram Panchayat. 2. Learned Single Judge has dismissed the challenge to the show cause notice issued under section 92 (1) (4) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for brevity Adhiniyam of 1993) calling upon the appellants to show cause as to why the appellants be not sent to civil jail for indulging in embezzlement of funds arising out of the fact that work of only Rs. 50,000/- has been certified by the SubEngineer, Janpad Panchayat, Dabra as against the sanctioned amount of Rs. 4,40,800/- thereby leaving an amount of Rs. 3,90,800/- unaccounted and thus recoverable. The show cause notices further hold the petitioners to have misused government funds and indulged in serious financial irregularities. 2.1 The writ Court while declining interference on merits held the petitions to be pre-mature since no final order was passed by the competent authority under any of the clauses under section 92 of Adhiniyam of 1993. 3. APPELLANTS SUBMISSIONS : Learned counsel for the appellant primarily contends that the show cause notices are unlawful due to following grounds; 1. The terminology used in the show cause notices demonstrates premeditated mind of the competent authority; 2. The competent authority is not empowered under section 92 to make up it's minds of sending the defaulter to civil jail unless 'reasonable opportunity' contemplated by section 92 (4) is afforded. 3. The impugned show cause notices are vitiated for being stigmatic in nature since appellants are held to have misused the government funds and being involved in embezzlement and serious financial irregularities without first considering the explanation of the appellants. 3. The impugned show cause notices are vitiated for being stigmatic in nature since appellants are held to have misused the government funds and being involved in embezzlement and serious financial irregularities without first considering the explanation of the appellants. The above said grounds had though been raised in the writ petitions although in generic terms but not considered by the writ Court and therefore it would be appropriate to deal with the same herein as these grounds go to the root of the matter and involve the correct interpretation of section 92. 3.1 The learned counsel has relied upon decision of Single Bench in the case of Sewak v. State of M.P. reported in 2016 (2) MPLJ 271 and another decision of single bench of this Court dated 11.8.2014 in Writ Petition No. 7575/2013. 4. RESPONDENT'S SUBMISSIONS : Per-contra learned counsel for the State defending the order impugned herein passed by the writ Court relies upon decision of the apex Court in the case of Union of India and anr. v. Kunisettty Satyanarayana, reported in (2006) 12 SCC 28 to contend that petitions in question were pre-mature as having been filed against show cause notices where final decision was yet to be taken by competent authority and therefore the said show cause notice were not amenable to the judicial review under Article 226 of the Constitution of India. 5. FINDINGS : Section 92 of Adhiniyam of 1993 is reproduced below for convenience and ready reference; 92. Power to recover records articles and money.- “(1) Where the prescribed authority is of the opinion that any person has un-authorisedly 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 of 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-A) The case pertaining to recovery of any record or article or money initiated by the prescribed authority shall be disposed of within six months from the date of initiation. (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.” 5.1. Section 92 of 1993 Adhiniyam forms part of Chapter (X) of the said Adhiniyam which deals with 'Control'. Thus the object behind section 92 is to exercise control over any person who in the opinion of the prescribed authority is in unauthorized custody of any record, article or money which belongs to the Panchayat. This power of control is exercised under section 92 (1) by the prescribed authority by forming an opinion that any record, article or money belonging to the Panchayat is unauthorizedly held by a person. Formation of this opinion which is prima facie in nature is a unilateral act of prescribed authority which may though be founded on his subjective satisfaction but the same ought to be arrived at by objective consideration of relevant material. Once having so formed the said opinion the prescribed authority asks the defaulting person in writing to return the article/record/money. 5.2. Once having so formed the said opinion the prescribed authority asks the defaulting person in writing to return the article/record/money. 5.2. The terminology employed by the prescribed authority while issuing show cause notice under section 92 (1) should not only reflect but also advance the object behind section 92. The object is to restore the possession of record/article/money belonging to the Panchayat which is in wrongful possession of some other person. The object is not to prosecute, condemn or punish the person who holds the record, article or money unauthorizedly Thus, the language in the show cause notice ought not to contain any stigma or taint or allegation on the character or conduct of the noticee or else said show cause notice can become vitiated as being stigmatic. It is settled principle of law that stigma or allegation against the character of any person ought not to be alleged or made without holding an enquiry in which element of reasonable opportunity to the person concerned is required to be afforded. Section 92 though contemplates in sub-section. (4) affording of reasonable opportunity but the same cannot mean conduction of full scale enquiry as contemplated in section 40 of Adhiniyam of 1993 for removing an elected office bearer. 5.3. Moreso, when a defaulting person is called upon to deliver the possession of the record/article/money belonging to the Panchayat then the show cause notice should merely mention the fact of the defaulting person having wrongful custody of the record, article or money belonging to the Panchayat without making any taint or allegation as regards the conduct and character of the defaulting person. This notice/order issued under section 92 (1) also should not contain any recital that if the possession of the record, article or money is not handed over then the defaulting person would be sent to civil jail. Such precaution is necessary as otherwise the authority would be blamed for being prejudiced against the defaulting person for having a premeditated mind. 5.4. Such precaution is necessary as otherwise the authority would be blamed for being prejudiced against the defaulting person for having a premeditated mind. 5.4. When the defaulting person fails or refuses to respond to the show cause notice in writing issued under section 92 (1) of Adhiniyam of 1993 then the prescribed authority is obliged to issue another notice in terms of section 92 (4) informing the defaulting person that due to failure/refusal to comply with the order passed under section 92 (1) he shall be confined to civil jail by affording the noticee some reasonable time of a few days so as to avoid the extreme step of subjecting the noticee to arrest and civil jail and further that during this notice period of a few days the defaulting person may have an opportunity to avoid civil jail by handing over the custody of record, article or money as the case may be. 5.5. The above said steps are not only in line with the provisions of section 92 (4) but also satisfy the object of this provision which refers to sub-section. (1), sub-section (2) and sub-section (3) disjunctively by employing the term 'or'. Meaning thereby that the reasonable opportunity is to be afforded to the defaulting person to show cause as and when the power under section 92 (1) or power under section 92 (2) or under section 92 (3) is exercised. Affording of reasonable opportunity contemplated by section 92 (4) relates to each of the sub-sections. (1), (2) and (3) separately and cannot be pressed into service conjointly for two or more of the three sub-sections of section 92. This interpretation subserves the rule of law which is manifested interalia by affording reasonable authority and adopting procedure established by law which is reasonable when tested on the anvil of Article 14 of the Constitution of India. 5.6. The abovesaid interpretation of section 92, best serves the object behind this provision and also ensures strict adherence to the principle of natural justice of reasonable opportunity. Such cautious approach is all the more necessary since passing of an order under section 92 (1) or (2) or (3) attracts disqualification from contesting panchayat elections for a period of six (6) years. 5.7. Such cautious approach is all the more necessary since passing of an order under section 92 (1) or (2) or (3) attracts disqualification from contesting panchayat elections for a period of six (6) years. 5.7. Pertinently the requirement of 'reasonable opportunity' in section 92 (4) would suffice in case summary enquiry is held where the fundamentals of 'reasonable opportunity' are adhered to, which can be summarized as follows : (a) Intimating the person concerned by means of show cause notice in writing under section 92 (1) that he is in possession of the money/article/record belonging to Panchayat and that the said possession be restored back to Panchayat within a reasonable period of time. This notice under section 92 (1) of Adhiniyam of 1993 should not contain insinuating recital of allegation, prosecution, stigma, punishment, character assassination, derisive remark, etc; (b) The above said show cause notice in writing should be served on the person concerned by modes prescribed by law under the 1993 Adhiniyam and Rules framed thereunder; (c) Reasonable time period depending upon attending facts and circumstances should be afforded to the noticee to respond to the abovesaid show cause notice under section 92 (1) of Adhiniyam of 1993; (d) In case the noticee denies the nature of possession to be unauthorized and demands supportive material which was considered by the prescribed authority while forming opinion under section 92 (1) of Adhiniyam of 1993 in regard to the possession being unlawful, the said incriminating material shall be supplied to enable the noticee to submit reply; (e) Thereafter on receipt of the reply or failure to file the same, the prescribed authority shall then record it's satisfaction by passing a speaking order, that the possession of record/article/money held by the noticee, is unauthorized. This speaking order containing this satisfaction arrived at about unauthorized possession should form part of fresh show cause notice issued to the noticee under section 92 (2) or 92(3) r/w section 92 (4) directing the noticee to return the record/article/money belonging to the Panchayat within reasonable period of time failing which any or both of the coercive steps of sending the noticee to civil jail or/and recover the money as arrears of land revenue and in case of record/article by appropriate mode prescribed under Chapter VII of the Code of Criminal Procedure, would be taken; (f) In case within reasonable period provided in (e) (supra) the record/article/money is not returned to the Panchayat the prescribed authority shall then be free to adopt the coercive methods under section 92 (2) or/and under section 92 (3) to ensure recovery of possession of record/article/money. 6. The decision cited by the learned counsel for the petitioner in the case of Shivansh (supra) though pertains to section 92 but was attended with distinct set of facts ie non-supply of material on the basis on which action under section 92 was taken. While the other judgment in Writ Petition No. 7575/2013 cited by the learned counsel for the petitioner is also distinguishable on facts as it related to the factual scenario where it was found that no enquiry worth it's name was conducted by the prescribed authority to arrive at the finding of money being outstanding against petitioners therein. 7. As regards the objection of the learned counsel for the State that the petitions before the writ Court were premature since challenge was to show cause notices and final decision is yet to be taken, this Court is of the considered view (as detailed infra) that since the very exercise of power by the prescribed authority under sections 92 (1), 92 (2) and 92 (4) is dehorse the said provisions, the said objection stands overruled. 8. On the anvil of the above analysis if the impugned show cause notices in both the petitions are tested it is evident that they suffer from following substantial legal defects; 1. The show cause notices are stigmatic in nature as it brands the petitioners to have misused the government funds having indulged in embezzlement and serious financial irregularities which is not the objective of section 92. 2. The show cause notices are stigmatic in nature as it brands the petitioners to have misused the government funds having indulged in embezzlement and serious financial irregularities which is not the objective of section 92. 2. The impugned show cause notices are said to be issued under section 92 (1) and yet without waiting for the reply of the petitioners the prescribed authority has discloses it's mind of sending the petitioners to civil jail without first complying with section 92 (4) of Adhiniyam of 1993 qua section 92 (2) of Adhiniyam of 1993. 3. The impugned show cause notices issued under section 92 (1) and under section 92 (2) have both been clubbed together which is impermissible in view of provisions of section 92 (4) which contemplates affording of reasonable opportunity by way of show cause notice issued separately for sections 92 (1) and 92 (2) of 1993 Adhiniyam. 9. In view of the above this Court has no hesitation to hold that the impugned show cause notices in both the petitions are vitiated in the eye of law as having been issued without affording reasonable opportunity as contemplated by section 92 (4) and further reflects premeditated mind of the prescribed authority besides being stigmatic in nature. 10. Consequently, both the Writ Appeal No. 359/2016 and Writ Appeal No. 294/2016 are allowed. The order of the writ Court dated 9.9.2016 passed in Writ Petition No. 6302/2016 and order dated 6.9.2016 passed in Writ Petition No. 6170/2016 are set aside. The impugned show cause notices dated 6.7.2016 (in Writ Petition No. 6170/2016) and dated 6.7.2016 (in Writ Petition No. 6302/2016 ) are quashed. 10.1. Passing of this o rder shall not come in way of the prescribed authority to exercise it's powers under section 92 afresh after following the due process of law as enumerated above. No cost.