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2020 DIGILAW 349 (MP)

Shriram Garare v. State of M. P.

2020-03-03

SUBODH ABHYANKAR

body2020
ORDER 1. This writ petition has been filed under Article 226 of the Constitution of India by the petitioners against the order order dated 4.9.2019 (Annexure P-5) passed by the respondent No. 2/Commissioner, Jabalpur whereby the order passed by the prescribed authority under section 40(1) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short "Adhiniyam, 1993") is set aside and the matter is remanded back for its consideration afresh however, instead of directing the authority to pass the order in accordance with law, it is directed to the competent authority to recover the amount from the petitonier if found due from him. Thus, the petitioners are aggrieved of the last observation made by the Commissioner which according to them is contrary to the penal provisions of S. 40 of the Adhiniyam, 1993. 2. In brief the facts of the case are that the petitioners are the residents of Gram Panchayat Bharbeli, Janpad Panchayat Balaghat and the respondent No. 5 is the elected Sarpanch of the aforesaid Gram Panchayat. The petitioners and other persons filed a complaint against the respondent No. 5 regarding the misuse of his powers and embezzlement. On this complaint, the competent authority conducted an enquiry and found misappropriation of the amount by the respondent No. 5 and thus recovery was also proposed. Subsequently, on 27.8.2018 a show cause notice was issued to the respondent No. 5 under sections 40 and 92 of the Adhiniyam, 1993 and after reply was filed by the respondent No. 5, the competent authority passed its order directing removal of the respondent No. 5 from the post of Sarpanch with a further disqualification for six years to contest the election and also ordered for the recovery of the amount, which was defalcated by the respondent No. 5. 3. Being aggrieved of the order dated 3.6.2019 the respondent No. 5 preferred an appeal before the Commissioner, Jabalpur and the Commissioner, vide its order dated 4.9.2019 (Annexure P-5) set aside the order and remanded back the matter to the competent authority, also directing that if the defalcation on the part of the respondent No. 5 is proved, the same may be recovered from him. 4. 4. Learned counsel for the petitioners has vehemently argued before this Court that such direction cannot be given by the Commissioner whereby the provisions of section 40 of the Adhiniyam, 1993 itself have been curtailed, as section 40 of the Adhiniyam, 1993 also provides for subsequent disqualification of the Sarpanch which was already done by the competent authority. Thus it is submitted that the Commissioner ought not to have directed the competent authority to impose the penalty of recovery only on the respondent No. 5. 5. On the other hand learned counsel for the respondent No. 5 has opposed the prayer of the petitioner and has submitted that the petition in itself is liable to be dismissed on the ground that the petitioners had no locus to assail the order passed by the Commissioner. It is further submitted that none of the rights of the petitioners have been violated by the impugned order and as such this petition is liable to be dismissed on the ground only of locus of the petitioners to file this petition. 6. Heard the learned counsel for the parties and perused the record. 7. The only question which falls for consideration of this Court is whether the Commissioner, while remanding the matter back to the competent authority vide its impugned order dated 4.9.2019, could have directed the competent authority to impose penalty only. section 40 of the Adhiniyam, 1993 reads 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 subsection "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, father-in-law, brother-in-law, sister-in-law, son-in-law or daughter-in-law:] [Provided further 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 lime 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 [x x x] under this Act." (Emphasis supplied) A bare perusal of the aforesaid section clearly reveals that if the allegations in the enquiry initiated under section 40 are found to be proved, then the competent authority has the power to disqualify the incumbent to contest the further election for a period of six years. 8. 8. So far as the order of the Commissioner is concerned, the para 6 of the same reads as under: ^^6- mijksDr foospuk ds ifjÁs{; esa eq[; dk;Zikyu vf/kdkjh] ftyk iapk;r ckyk?kkV dk vkyksP; vkns'k fnukad 3-6-2019 fujLr djrs gq, vihykFkhZ dks ljiap xzke iapk;r Hkjosyh ds in ij cgky fd;k tkrk gSA v/khuLFk U;k;ky; dks funsZf'kr fd;k tkrk gS fd Ádj.k dk iqu% ijh{k.k fd;k tk;s vkSj v|ru fLFkfr esa ;fn vkfFkZd vfu;ferrk Áekf.kr gksrh gS rks lkjxkfHkZr vkns'k ikfjr dj vihykFkhZ ls jkf'k olwyh dh dk;Zokgh lqfuf'pr dh tk;sA** (Emphasis supplied) Thus testing the aforesaid order on the anvil of section 40 of the Adhiniyam, 1993, it is apparent that the Commissioner has failed to appreciate the relevant provisions and has passed the order directing the competent authority to pass the order afresh and if it is found that any illegality has been committed by the respondent No. 5, the recovery may be effected from him, which finding, in the considered opinion of this Court cannot be countenanced, as the imposition of the punishment ought to have been left to the competent authority's discretion in accordance with law only. 9. So far as the objection regarding the locus of the petitioners is concerned, it is found that the petitioners were also made parties before the competent authority. In view of the same, if the petitioners have filed this petition, it is well within their rights. 10. As a result, petition stands allowed and the impugned order dated 4.9.2019 (Annexure P-5) is hereby quashed so far as its observation regarding imposition of penalty is concerned and instead it is modified to the extent that it is now directed that after the matter is remanded back to the competent authority, the said authority shall decide the matter afresh in accordance with law as provided under section 40 of the Adhiniyam, 1993. 11. With the aforesaid observations, the petition stands disposed of. No cost. ..................