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2018 DIGILAW 351 (MP)

Aradhana Mahobiya v. State of Madhya Pradesh

2018-03-22

VIJAY KUMAR SHUKLA

body2018
ORDER : 1. With the consent of the parties, the matter is heard finally. In the instant petition filed under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the impugned order passed by the respondent no. 3, whereby the petitioner has been removed from the post of President, Janpad Panchayat Kundam. A challenge has also been made to the order dated 07.02.2018, whereby the appeal against the said order has been rejected. 2. Brief facts in nutshell are that the petitioner was elected on the post of President, Janpad Panchayat Kundam. On a complaint, a proceeding under Section 40 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter the same shall be referred as "Adhiniyam 1993") was instituted and the case was registered as Case No. 01/A-89(9)/2015-16. A show cause notice dated 10.03.2017 was issued to the petitioner. In the said show cause notice, a reference was made to the inquiry report submitted by the Sub Divisional Officer (Revenue) Kundam dated 14.07.2016. Copy of the said report was also enclosed alongwith the said show cause notice and the petitioner was asked to show cause why he should not be removed from the post of the President of the Janpad Panchayat, Kundam. The date of hearing was fixed 27.03.2017. In the complaint, it was alleged against the petitioner that the petitioner and her husband had misbehaved with the complainant and had also caused unnecessary obstruction in the official work. During the pendency of the said proceedings, another complaint was received and the same was also got inquired. On the said complaint also, a report was submitted on 10.08.2017 by the Sub Divisional Officer. In the same pending proceedings itself, the respondent no. 3 issued second show cause notice on 09.10.2017 (date is not mentioned on the top of the notice) and the petitioner was asked to show cause why he should not be removed from the office of the Janpad Panchayat. 3. Learned counsel for the petitioner submitted that the respondent no. In the same pending proceedings itself, the respondent no. 3 issued second show cause notice on 09.10.2017 (date is not mentioned on the top of the notice) and the petitioner was asked to show cause why he should not be removed from the office of the Janpad Panchayat. 3. Learned counsel for the petitioner submitted that the respondent no. 3 has failed to conclude the proceedings within a period of 90 days from the date of issuance of the show cause notice as envisaged under the provisions of Section 40 of Adhiniyam, 1993 and since the order of removal has been passed beyond the period of 90 days from the date of issuance of the show cause notice, the order passed is without jurisdiction and is liable to be quashed. He relies on the judgment passed by the Division Bench in the case of Dhanwanti vs. State of M.P. and Others, 2013 (1) MPLJ 549 . 4. Learned counsel for the State supported the orders passed by the Collector and the Commissioner on the ground that the Collector has counted the period of 90 days from 13.10.2017 from the date of the second show cause notice. 5. Learned counsel for respondent nos. 7 and 8 raised an objection that the present petition is not maintainable as it has been filed by the President of the Janpad Panchayat and there is no authorization by the Gram Panchayat to file the petition. He relies on the judgment passed by this court in the case of Gram Panchayat, Bamrol vs. Jagdish Singh Rawat and Others, 2008 (3) MPLJ 127 . 6. Before addressing to the main issue raised in the present petition regarding the provisions of Section 40 of Adhiniyam 1993, it is apposite to deal the first objection of respondent nos.7 and 8. I do not find any merit in the contention of the learned counsel for respondent nos. 7 and 8 that the present petition is not maintainable on the ground that no resolution of Janpad Panchayat has been filed by the petitioner authorizing him to file the present petition. The present petition is not filed on behalf of Janpad Panchayat. The petition is filed by the President of Janpad Panchayat regarding his own grievance whereby he has been removed from the office of the President of Janpad Panchayat. The present petition is not filed on behalf of Janpad Panchayat. The petition is filed by the President of Janpad Panchayat regarding his own grievance whereby he has been removed from the office of the President of Janpad Panchayat. Therefore, no resolution of the Janpad Panchayat is required to be filed authorizing the petitioner to file the present petition raising personal grievance. 7. The seminal question arises for consideration of the provisions of Section 40 of the Adhiniyam 1993, which is reproduced as under: "Section 40 of the Adhiniyam of 1993 prescribes provision of removal of office bearers of Panchayat, 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. (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." Proviso to section 40 (1) (c) of the Adhiniyam of 1993 prescribes a rider in regard to passing of final order in the enquiry by the Prescribed Authority, which is as under: "Provided further that the final order in the enquiry 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." The aforesaid proviso was substituted by Act No. 20 of 2005. Earlier the proviso was as under: "Provided that the final order in the enquiry shall as far as possible be passed within 90 days from the date of issue of show-cause notice to the concerned office bearer." 8. The Division Bench in the case of Dhanwanti vs. State of M.P. and Others (supra) considered the provisions of Section 40 of Adhiniyam, 1993 and the effect of the proviso and held as under: "10. The Division Bench in the case of Dhanwanti vs. State of M.P. and Others (supra) considered the provisions of Section 40 of Adhiniyam, 1993 and the effect of the proviso and held as under: "10. After reading the aforesaid proviso, unambiguous and clear meaning is that the Prescribed Authority has no power and jurisdiction to continue the proceeding beyond the period of 90 days because it is mentioned that if the final order in the enquiry is not passed within a period of 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. It means that beyond the period of 90 days from issuance of show-cause notice, the Prescribed Authority has no jurisdiction to continue the enquiry proceedings." "11. Hon'ble Supreme Court of India in the case of Gursahai Saigal vs. Commissioner of I.T. Punjab, AIR 1963 SC 1062 , relying on the judgment of the Privy Council in the case of Commissioner of Income Tax, Bengal vs. Messrs Mahaliram Ramjidas, AIR 1940 PC 124 and also in the case of Nelson Motis vs. Union of India and Another, AIR 1992 SC 1981 , Gurudevdatta VKSSS Maryadit and Others vs. State of Maharashtra and Others, AIR 2001 SC 1980 , State of Jharkhand and Another vs. Govind Singh, AIR 2005 SC 294 has held that when the words of a statute are clear plain or unambiguous i.e. they are reasonably susceptible to only one meaning the Courts are bound to give effect to that meaning irrespective of consequences. The Hon'ble Supreme Court further in the case of State of Uttar Pradesh and Others vs. Dr. The Hon'ble Supreme Court further in the case of State of Uttar Pradesh and Others vs. Dr. Vijay Anand Maharaj, AIR 1963 SC 946 , Thakur Amar Singhji and Others vs. State of Rajasthan and Others, AIR 1955 SC 504 , Suraj Mai Kailash Chand and Others vs. Union of India and Another, AIR 1982 SC 130 , Jitender Tyagi vs. Delhi Administration and Another, AIR 1990 SC 487 , Nelson Motis vs. Union of India and Another (supra) and M/s Oswal Agro Mills Ltd. vs. Collector of Central Excise and Others, AIR 1993 SC 2288 , has held that when a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself." 9. From the record, it is seen that the show cause notice to remove the petitioner from the office of Janpad Panchayat was issued on 10.03.2017 and the case was registered as Case No. 01/A-89(9)/2015-16. During the pendency of the proceedings on the basis of some other inquiry report submitted by the Sub Divisional Officer on a complaint, second show cause notice was issued , which is filed at page no.....102 of the record. The date on the said notice is not mentioned. The case number in the second notice is also same mentioned as Case No. 01/A-89(9)/15-16. In the proviso to Section 40(1)(c) the period of 90 days has to be counted from the date of issuance of the show cause notice to the concerned office bearer and where the pending case is not concluded any order of removal passed beyond the period of 90 days from the date of issuance of the show cause notice is without jurisdiction and is liable to be quashed. The word used under the proviso "from the date of issuance of the show cause notice" and "pending case" makes it clear that the intention of the legislature is that the proceedings should be completed within 90 days from the date of issuance of the show cause notice, otherwise if the proceeding is allowed to be continued for a long or indefinite period by issuing show cause notices repeatedly on one or other complaint, the same would defeat the intention of the legislature of prescribing time period for expeditious disposal of proceedings of removal against an elected office bearer. The authority has erred while counting the period of 90 days from the date of issuance of the second show cause notice, which is issued in the same pending case. The period of 90 days shall be counted from the date of the first show cause notice i.e. 10.03.2017. In the present case, the order of removal has been passed on 28.12.2017 which is beyond a period of 90 days. 10. In view of the law laid down by the Division Bench in the case of Dhanwanti vs. State of M.P. and Other (supra), I find that the authorities while passing the impugned orders of removal and dismissing the appeal have erred in counting the period of 90 days from the date of second show cause notice in the same proceeding and therefore, the impugned order of removal dated 28.12.2017 (Annexure P-7) and order of dismissal of appeal dated 07.02.2018 (Annexure P-9) are quashed. 11. Accordingly, the writ petition is allowed.