Madhya Pradesh High Court
Resham Singh vs The State Of Madhya Pradesh on 29 November, 2019
Author: Chief Justice
Bench: Chief Justice
W.A. No.1453/2019
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HIGH COURT OF MADHYA PRADESH : JABALPUR
W. A. No.1453/2019
(Resham Singh Vs. State of Madhya Pradesh and others)
Jabalpur dated : 29.11.2019
Shri N. S. Ruprah, Advocate for the appellant.
Shri Bhupesh Tiwari, Govt. Advocate for the respondents/State.
Heard learned counsel for the parties.
Per : Ajay Kumar Mittal, Chief Justice Challenge in the present intra-court appeal preferred under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is to an order dated 25.06.2019 passed by the learned single Judge in W.P. No.9737/2016 (Resham Singh v. State of M.P. and others) whereby the writ petition filed by the appellant has been dismissed.
2. Briefly stated, the facts giving rise to this intra-court appeal are that at the relevant time when the petitioner-appellant was working as Sarpanch of Gram Panchayat Kachur, Janpad Panchayat, Rewa, he was issued a show cause notice on 13.01.2014 by the respondent No.4/Sub Divisional Officer proposing for his removal on account of certain financial irregularities committed by him as well as for recovery of the amount alleged to have been defalcated. The final order was passed by the Sub Divisional Officer on 27.08.2014. Against the said order, an appeal was taken to the Collector, who vide order dated 09.01.2015 upheld the order of the Sub Divisional Officer. The revision filed by the petitioner-appellant against the said order of the Collector was also dismissed by the Commissioner vide order dated 13.05.2016. Feeling aggrieved by these orders, the appellant had filed the writ petition inter alia on the ground that the W.A. No.1453/2019
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show cause notice was issued to the petitioner on 13.01.2014 whereas the final order was passed on 27.08.2014 de hors the provisions of Section 40 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for short "the Adhiniyam") which provides that the Government or the prescribed Authority is obliged to pass the order of removal of Sarpanch within 90 days from the date of issuance of show cause notice. In support of the said contention, reliance was placed upon a Division Bench judgment of this Court in Dhanwanti v. State of M.P. & others, 2013 (1) MPLJ 549. The learned single Judge found no merit in the writ petition and held that the said Division Bench judgment had no occasion to deal with the provisions of Section 92 of the Adhiniyam and it was mainly based on the provisions of Section 40(1)(c) thereof. Hence, this intra-court appeal has been filed by the appellant-writ petitioner.
3. We have heard learned counsel for the parties and find no merit in the present appeal.
4. Learned counsel for the appellant has made a solitary submission that the Division Bench judgment in Dhanwanti's case (supra) has not been read in correct perspective. Inasmuch as, it has been clearly held that the provisions of Section 40 of the Adhiniyam were a piece of substantive law giving a substantive right and the word "shall" used in the proviso attached to Section 40 of the Adhiniyam, leaves no doubt that the language used in the said Section specifically meant for fixing the time limit for completion of inquiry against the office-bearer of the Panchayat and the same was mandatory.
5. Learned counsel for the respondent-State combating the said argument of the learned counsel for the appellant submitted that the issue: as to whether W.A. No.1453/2019
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the provisions of Section 40 of the Adhiniyam are mandatory or directory has already been decided by a Full Bench of this Court in Om Kar Mahole vs. State of M.P. and others, 2019(2) MPLJ 379 which has also overruled the Division Bench decision in Dhanwanti's case (supra).
6. The Full Bench of this Court in Om Kar Mahole (supra), has held as under:-
"22. Still further, there is no consequence provided in the statute 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. 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 W.A. No.1453/2019
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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 scot-free.
24. In view of the above, we find that the Division Bench judgments of this Court in Dhanwanti's case (supra); Santosh Raghuvanshi Vs. State of M.P. - 2013(II) MPWN 28 and Single Bench decision in Rajesh Barkade Vs. State of M.P. and others - 2018(2) MPLJ 148 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."
7. Considering the law laid down by a Full Bench of this Court in Om Kar Mahole (supra) and testing the same on the anvil and touchstone of the present case, we do not find any case is made out warranting interference with the order passed by the learned single Judge. Accordingly, the present appeal is dismissed.
(Ajay Kumar Mittal) (Vishnu Pratap Singh Chouhan)
Chief Justice Judge
S/
Digitally signed by SACHIN CHAUDHARY
Date: 2019.12.16 11:42:44 +05'30'