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2019 DIGILAW 318 (MP)

Madanlal Chouhan v. State of M. P.

2019-04-12

PRAKASH SHRIVASTAVA

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ORDER 1. With consent heard finally. 2. The petitioner is seeking review of the order dated 13.3.2019 whereby W.P. No. 23188/2018 filed by the respondent No. 5 herein was allowed and the removal of the respondent No. 5 from the post of Vice President was set aside placing reliance upon the judgement of the Division Bench in the matter of Dhanwanti v. State of M.P. reported in 2013(2) JLJ 84 . 3. Learned counsel appearing for the petitioner has pointed out that subsequently the law laid down in the case of Dhanwanti (supra), has been held to be not a good law by the Full Bench by the judgement dated 4.10.2018 passed in WP No. 880/2018 in the matter of Om Kar Mahole v. State of M.P. and others [ 2019(2) JLJ 6 ]. 4. The Full Bench in the matter of Om Kar Mahole v. State of M.P. and others in this regard has held as under : “22. Still further, there is no consequence provided in thestatute that in case of non-completion of the inquiry within the period prescribed or even the extended period, the inquiry will stand abated. Therefore, an inquiry against an elected representative cannot be set at naught only for the reason that it has not been completed within the time mentioned in the proviso. Since the object of the statute is not only to conduct election to the third tier of local administration but to conduct the proceedings of such third tier of local self-government in a transparent manner, therefore, the failure to complete the inquiry within the time prescribed will not confer advantage to the member, who is facing inquiry. Such interpretation would give premium to an elected representative, who is facing inquiry because of allegations. Such interpretation is neither permissible nor will achieve their intention to bring probity in the third tier of local self-government. If such interpretation is adopted, it would be easy for an elected representative to use dilatory tactics to frustrate the inquiry. Such is not the intention of the proviso. The proviso intends that inquiry should be completed at an early date as the inquiry shall stand frustrated if it is not completed within the time prescribed. Still further, the conduct of inquiry is a quasi-judicial function. Such quasi-judicial function cannot depend upon the control of any superior Authority. Such is not the intention of the proviso. The proviso intends that inquiry should be completed at an early date as the inquiry shall stand frustrated if it is not completed within the time prescribed. Still further, the conduct of inquiry is a quasi-judicial function. Such quasi-judicial function cannot depend upon the control of any superior Authority. It has to be exercised by Inquiry Authority as it may consider appropriate. Therefore, we find that information required by the prescribed Authority to be given to the senior officer and request for extension of time has to be read down to the effect that the prescribed Authority may record reasons for not concluding the inquiry within 90 days but the permission of the senior officer impinges upon the independence of the prescribed Authority. 23. In view of the aforesaid judgments, the use of word “shall” is not determinative of the fact whether the proviso to Sub-section (1)(c) of section 40 of the Act is mandatory. The proviso is meant to complete the inquiry into the allegations of misconduct against the elected member of Panchayat. Such provision is not to make the inquiry proceedings redundant if the inquiry is not completed within the period prescribed so as to allow the elected member to go scotfree. 24. In view of the above, we find that the Division Bench judgments of this Court in Dhanwanti’s case (supra); Santosh Raghuvanshi’s case (supra) and Single Bench decision in Rajesh Barkade’s case (supra), are not the correct enunciation of law as the time was fixed more to ensure that the proceedings are completed expeditiously rather than to confer advantage to the delinquent elected member. Consequently, the same are overruled. 25. Having answered the question referred to us, the matter be placed before the Division Bench as per Roster on 22.10.2018.” 5. The above judgement of the Full Bench was not pointed out to this Court when the order was passed, hence, an apparent error had kept in any placing reference upon the earlier judgement of the Division Bench in the case of Dhanwanti (supra), which no longer holds fields. 6. Hence, the review petition is allowed and the order dated 13.3.2019 passed in W.P. No. 23188/2018 is recalled and the writ petition is restored to its original position.