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Madhya Pradesh High Court · body

2021 DIGILAW 101 (MP)

Shyamubai v. State of M. P.

2021-02-03

VIVEK RUSIA

body2021
ORDER : Vivek Rusia, J. 1. The petitioner is before this court by of the writ petition filed under art 226 of the Constitution of India challenging the validity of the order dated 6.4.2018 passed by the Chief Executive Officer (CEO), Zila Panchayat, Mandsaur u/s. 92 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short "the Adhiniyam") directing recovery of Rs. 10,10,980/- and also the order dated 8.6.2020 passed by Commissioner, Ujjain whereby the appeal has been dismissed. 2. Facts of the case, in short, are as under : The petitioner was elected as Surpanch of Gram Panchayat Dethli Bujurg, Tehsil and District Mandsaur for the period from 2010 to 2014. During the aforesaid tenure, under the scheme known as "Panch Parmeshwar Yojna" and "Nirmal Bharat Abhiyan" for construction of 75 toilets funds were allotted by the State Government. Out of 75 toilets, only 10 toilets were constructed and the remaining fund has been misappropriated by the then Secretary and Surpanch. A complaint to that effect was made to the Chief Executive Officer, Zila Panchayat. A Preliminary a Enquiry was got conducted and the report came against her. On a request made by the petitioner, vide order dated 6.11.2017, the CEO, Zila Panchayat was directed to conduct re-inquiry and submit the report. The CEO issued the notice dated 10.11.2017 to the petitioner, Secretary - Lalchand Bhaskar and husband of the petitioner (commonly known as Surpanch Pati). On 10.11.2017, Nanalal Patidar (Surpanch Pati) appeared and stated that he will give the statement on behalf of the Surpanch i.e. petitioner and sought time up to 13.11.2017. On the said date, statement of previous Secretary - Vinkesh Patidar was recorded who informed that he took the charge of the post of Incharge Secretary on 31.12.2013 and remained in charge up to 2.6.2014 and during that period, there was no such transaction and he did not know about the irregularities committed by Lalchand Bhaskar. Lalchand Bhaskar Secretary of Gram Panchayat appeared before the CEO and recorded his statement that he assumed the charge of the post of Secretary on 21.7.2012 and admitted that out of 75, only 10 toilets were constructed and the construction material of 65 toilets was purchased. All the sanctioned amount has been withdrawn by the joint signature of Surpanch and Secretary. All the sanctioned amount has been withdrawn by the joint signature of Surpanch and Secretary. He has also alleged that Surpanch Pati after obtaining her signature used to take the Cheque to his house for taking the signature of the present petitioner and thereafter he prepared the voucher, M.B. & Muster bill and after obtaining the signature of the Sub Engineer, withdrawn the amount from the bank. He deposed that after the charge was taken from him, the record has been misplaced. Had he forged the signature of Surpanch, then the complaint would have been made at the relevant point of time by the petitioner or her husband. Statement of Gram Rojgar Sahayak - Kaluram Jatav was also recorded, in which he deposed that he is working since 4.3.2013 in the Panchayat and the petitioner being a Surpanch used to come to Panchayat only on 15th August and 26th January and in the remaining period, the panchayat work used to be done by the Surpanch Pati-Nanalal Patidar. On 14.11.2017, statement of Shyamubai - present petitioner and her husband - Nanalal Patidar were recorded. In his statement, Nanalal Patidar admitted that his wife Shyamubai was Surpanch of the Gram Panchayat for a period from January 2010 to December 2014 and her specimen signatures were taken for operating the Bank Account. After Vidhan Sabha elections when she went to the Bank along with him for withdrawal of the amount to make payment of vendors, then she came to know that the Secretary - Lalchand Bhaskar has withdrawn the entire amount by forging her signatures in the cheques, therefore, a complaint was made to the Collector on 18.12.2013. Surpanch Pati in his statement has stated that the petitioner is educated up to 4th Standard, therefore, he used to assist her in day to day working of the Panchayat like signatures on the cheque, signature on the certificate, etc., but the Secretary has withdrawn the amount by forging the signature of the petitioner. After conducting the inquiry, the Chief Executive Officer submitted the report that under the Panch Parmeshwar Yojna amount of Rs. 7,08,236/- was sanctioned and under Nirmal Bharat Abhiyan out of 75 toilets, only 10 toilets were constructed and amount of Rs. 3,02,744/- for construction of remaining 65 toilets have been misappropriated hence the entire amount of Rs. After conducting the inquiry, the Chief Executive Officer submitted the report that under the Panch Parmeshwar Yojna amount of Rs. 7,08,236/- was sanctioned and under Nirmal Bharat Abhiyan out of 75 toilets, only 10 toilets were constructed and amount of Rs. 3,02,744/- for construction of remaining 65 toilets have been misappropriated hence the entire amount of Rs. 10,08,980/- is liable to be recovered jointly from the Secretary and the Surpanch - the present petitioner. On the basis of the aforesaid report dated 17.10.2017, a show-cause notice was issued to the petitioner calling upon her to submit the reply. Despite receipt of the notice, on 21.12.2017, 23.1.2018, 8.3.2018 and 27.3.2018, the petitioner did not appear. Therefore, the CEO vide order dated 6.4.2018 has passed the order u/s. 92 of the Adhiniyam directing recovery of Rs. 10,08,980/- jointly from the present petitioner and the Secretary - Lalchand Bhaskar. Being aggrieved by the aforesaid order of the CEO, the petitioner preferred an appeal before the Commissioner reiterating the allegation against the Secretary about the withdrawal of the amount by forging her signatures. Learned Commissioner did not find any substance in the arguments of the petitioner and dismissed the appeal vide order dated 8.6.2020, hence the present petition before this Court. 3. After notice, the respondents have filed the reply in support of the orders passed by the CEO and the Commissioner. It is submitted that the petitioner was given ample opportunity of hearing by the CEO in the re-inquiry as well as proceedings u/s. 92 of the Adhiniyam, but the petitioner has failed to produce any justification or documents to prove her innocence. The withdrawal of the amount from the Bank Account is not in dispute. It is also not in dispute that out of 75 toilets, only 10 toilets were constructed. Hence, the petition is liable to be dismissed. 4. The petitioner has filed rejoinder to the return filed by the respondents, by submitting that her husband Nanalal Patidar had submitted a complaint to the Collector on 18.12.2013 that the Secretary has withdrawn the amount from the Bank Account by forging the signature and thereafter he is missing from the workplace and a report of the missing person has been lodged in Police Station Garoth. The petitioner submitted the reply to the show-cause notice on 21.12.2016 and 4.1.2018, therefore, it cannot be said that she did not respond to the show-cause notice issued by the CEO. 5. Learned counsel for the petitioner has forcefully argued that this Court in the number of cases has held that before passing the order u/s. 92 of the Panchayat Raj Adhiniyam, an inquiry under section 89 is mandatory. The proceedings under section 92 are like executive proceedings and there has to be an adjudication by the competent authority as contemplated under section 89 of the Adhiniyam. Therefore, the impugned orders are liable to be set aside. It is further argued that the petitioner was not involved in the withdrawal of the amount from the Bank. The Secretary of the Gram Panchayat has forged her signature and withdrew all the amounts for which he suspended and thereafter he remained absconding. All these facts have not been considered either by the CEO or by the Commissioner. Hence the impugned orders are liable to be set aside. In support of the contention, learned counsel for the petitioner has placed reliance over the judgment of Division Bench of this Court at Principal Seat in the case Smt. Nani Invati V/s. State of M.P. & others (W.A. No. 38/2017 decided on 10.1.2018 in which this Court has set aside the order passed u/s. 92 of the Adhiniyam and remanded the case to the CEO for fresh proceedings after giving an opportunity of hearing. 6. On the other hand, learned Panel Advocate appearing for the respondents/State submits that the petitioner was given ample opportunity of hearing by the CEO as well as by the Commissioner, but despite that, she did not appear and produce any material to justify her case. Withdrawal of the amount under the signatures of the petitioner and the Secretary is not in dispute. The fact that out of 75 toilets only 10 toilets were constructed and a huge amount has been misappropriated and the loss has been caused to the Government. Therefore, the petition is liable to be dismissed. I have heard the learned counsel for the petitioners and perused the material available on record. 7. The fact that out of 75 toilets only 10 toilets were constructed and a huge amount has been misappropriated and the loss has been caused to the Government. Therefore, the petition is liable to be dismissed. I have heard the learned counsel for the petitioners and perused the material available on record. 7. It is not in dispute that the petitioner was Surpanch of Gram Panchayat for the period of 5 years commencing from January 2010 to December 2014 and during this period Lalchand Bhaskar was the Secretary of the Gram Panchayat. Undisputedly during this period, funds were sanctioned for construction of 75 toilets out of which only 10 toilets were constructed. Complaints were received by the Chief Executive Officer, Zila Panchayat that the petitioner and the Secretary of the Gram Panchayat have misappropriated the funds and did constructed 65 toilets under the Panch Parmeshwar Yojna and Nirmal Bharat Abhiyan and there is misappropriation of Rs. 7,08,236/- under the Panch Parmeshwar Yojna. A complaint was made on 18.12.2013 and inquiry was got conducted and the report was submitted. Thereafter, the petitioner submitted the complaint to the Commissioner on 3.10.2017 and requested for impartial investigation in the matter. Therefore, the CEO, Zila Panchayat, Mandsaur Shri P.S. Mandoria was given the task of reinvestigating the matter. He issued notice to the petitioner, Secretary and petitioner's husband. They all appeared before the CEO and recorded their statements. In order to corroborate the allegation made in the complaint, the CEO sought elucidation from State Bank of India, Khadavda Branch, Central Bank of India, Garoth and Shamgarh Branch and as per reply given by the Branch Managers of the aforesaid Banks that all the amounts were withdrawn through cheques signed jointly by the Secretary and the Surpanch. Their signatures were verified from specimen signatures available with the Bank. Therefore, it is not in dispute that amount of Rs. 10,08,980/- was withdrawn by the joint signatures of the petitioner and the Secretary and loss has been caused to the Government. 8. The sole contention raised by the petitioner in challenging the impugned orders is that no inquiry was conducted under section 89 of the Adhiniyam and directly the order has been passed under section 92 of the Adhiniyam. The aforesaid argument has no substance because twice the inquiries were conducted by the competent authority. 8. The sole contention raised by the petitioner in challenging the impugned orders is that no inquiry was conducted under section 89 of the Adhiniyam and directly the order has been passed under section 92 of the Adhiniyam. The aforesaid argument has no substance because twice the inquiries were conducted by the competent authority. On a request made by the petitioner, the CEO, Zila Panchayat has conducted the detailed inquiry in which opportunity of hearing was given to the petitioner, her statement was recorded and statement of her husband and the Secretary were also recorded. An inquiry from the Banks was also made. Therefore, there was no violation of the principles of natural justice. The Chief Executive Officer, Zila Panchayat submitted the report and thereafter proceedings under section 92 of the Adhiniyam were initiated against the petitioner by issuing several show-cause notices and as per the record, despite receipt of the notice, the petitioner only submitted the reply but did not appear on 21.12.2017, 23.1.2018, 8.3.2018 and 27.3.2018. Therefore, on the basis of the inquiry report submitted by the Chief Executive Officer, Zila Panchayat, - Dr Pankaj Jain has passed the impugned order. The petitioner is not assailing the impugned orders on the merits, but only making allegations against the Secretary that he has withdrawn the amount from the bank account by forging her signatures. She has failed to establish the same before the competent authority. No FIR was lodged by the petitioner about forging of her signatures. In fact, petitioner was not involved in the day to day work of the Panchayat and her husband (Surpanch Pati) - Nanalal Patidar used to work with the Secretary which is also against the provisions of the Adhiniyam. The reservations to the women candidate are made in the Panchayats election in order to give a proper representation of women in the Gram Panchayat, but they are being deprived of to work by their relatives like husband, father, brothers etc. There is the compliance of Section 89 of the Adhiniyam because the inquiry was conducted by the Chief Executive Officer, Zila Panchayat who is a competent authority to take action under section 92 of the Adhiniyam and thereafter, final order has also been passed by the Chief Executive Officer, Zila Panchayat. In view of the above, I do not find any ground to interfere with the impugned orders. In view of the above, I do not find any ground to interfere with the impugned orders. The petitioner is not entitled for any relief. In view of the foregoing discussion, this petition deserves to be and is hereby dismissed.