Madhya Pradesh High Court
Raja Raj Singh vs State Of M.P. And Ors. on 1 December, 1999
Equivalent citations: 2000(1)MPHT490, 2000 A I H C 1661, (2000) 2 JAB LJ 242
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. By this writ petition preferred under Article 227 of the Constitution of India the petitioner has prayed for issue of a writ in the nature of certiorari for quashment of the order dated 22-3-99, 'Annexure P-12' whereby the Collector, Sagar, respondent No. 3 herein had passed an order of removal of the petitioner from the office of President, Janpad Panchayat, Jaisenagar in exercise of power conferred on him under Section 40 of the M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act') and the order dated 12-5-99, 'Annexure P-18' by which the appellate authority, the Additional Commissioner, Sagar has affirmed the order of removal.
2. Sans unnecessary details, the facts as have been unfurled are that the petitioner was elected as President of Janpad Panchayat, Jaisenagar in the District of Sagar. During his tenure he had made complaints to the higher authorities with regard to mal-functioning of the Chief Executive Officer, Jaisenagar. Due to such complaint the said Chief Executive Officer had harboured grudge against him and to satisfy his feeling of vengeance. He set up one Skandh Mishra, the Sarpanch of Gram Panchayat, Karraiya, who made number of complaints to the Collector against the petitioner. The Chief Executive Officer also made certain complaints against the petitioner before the Collector. The respondent No. 3 after receiving such complaints against the petitioner constituted an enquiry committee consisting of Dy. Collector Sagar, who functioned as the President of the said committee which included Sub-Divisional Officer, Rural Engineering Services, Sub-Division Sagar and District Auditor in the Office of Dy. Director, Panchayat and Social Welfare, Sagar as other members. The said committee recorded the statements of the complainant, Skandh Mishra and 7 others, namely, Raghuraj Singh, Rakesh Patel, Jaalim Singh, Sibbulal, Morari Pd. Khare, Prahlad Pd. Raikwar and Raj Kumar Chadhar. It is alleged that the said persons are working under various wings of the Janpad Panchayat and in the Department of Rural Engineering Services and they had an axe to grind against the petitioner. The committee submitted its report indicating that the petitioner was prima facie guilty of the charges levelled against him. On the basis of the aforesaid report the Collector issued a show cause notice under Section 40 of the Act on 18-2-99 to the petitioner which was received by him on 22-2-99. He prayed for some time to furnish his explanation. The Collector adjourned the matter to 1-3-99. On that day the petitioner filed his reply and prayed for grant of various documents, list of witnesses and statements recorded against him. This prayer was incorporated in the reply to show cause filed by the petitioner. It is alleged in the petition that the Collector had not supplied the copy of the enquiry committee report and the statements of the witnesses while issuing the notice to show cause. It is averred in the petition that on 1-3-99 when the date was fixed for submission of reply of the petitioner, the two members of the Enquiry Committee, namely, Shri Shivram Patna and Shri Soni were called and they were examined. As the petitioner complained with regard to inadequacy of time for cross-examining the witnesses, the competent authority adjourned the matter to 5-3-99. On that clay the third member of the Committee was examined. Thereafter, the matter was fixed for final argument on 8-3-99 and the matter was heard by the competent authority and the impugned order was passed.
3. Assailing the aforesaid order the petitioner preferred an appeal before the appellate authority. A specific ground was taken in the memorandum of appeal that the competent authority has proceeded in flagrant violation of the principles of natural justice in as much as the documents which were utilised against the petitioner were not furnished to him and the persons who had made allegations against the petitioner were not examined the members of the enquiry committee were examined. It is also pleaded in the petition that the appellate authority without considering the grievance of the petitioner in proper perspective affirmed the order of the competent authority. According to the petitioner the orders passed by the authorities below are unsustainable in as much as there has been violation of principles of natural justice as the inquiry was conducted by the inquiry committee behind the back of the petitioner and the materials obtained by the committee against the petitioner were not supplied to him and the witnesses were not examined but their statements have been taken note of by the competent authority and further the petitioner was not provided adequate opportunity to examine his witnesses. It is also averred that the committee which has been appointed by the Collector did not have jurisdiction/authority to conduct preliminary inquiry as that violates the commands of the circular dated 10-5-95 issued by the State Government.
4. A return has been filed by the answering respondents No. 1 to 3 contending, interalia, that there was a regular inquiry by the Collector and the petitioner had been afforded sufficient opportunity to put forth his case and it cannot be said that there has been violation of principles of natural justice. It is also stated that the Collector had correctly constituted the Committee and the members of the committee had authority to conduct the preliminary inquiry and the same does not run contrary to the guidelines enshrined in the circular in question.
A return has been filed by the respondent No. 4 who has supported the stand taken by the respondents No. 1 to 3. That apart, the said respondents have also filed the order dated 8-4-99 passed by the appellate authority.
5. I have heard Mr. Manindra Bhatti, learned counsel for the petitioner, Mr. Ajay Mishra, learned Dy. Advocate General for the respondent Nos. 1 to 3 and Mr. D.S. Baghel, learned counsel for the respondents No. 4 and 5.
6. Mr. Bhatti has submitted that the order passed by the Collector is indefensible as the said authority had not supplied the documents which form the bedrock of the charges and that would go a long way to show that the petitioner was not granted sufficient opportunity to put forth his case. It is his further submission that the Collector had relied on the documents and statements of the witnesses who had not been examined and findings have been recorded solely on the basis of the report submitted by the committee which was constituted by the Collector. It is further urged by him that the Committee did not have authority to conduct the inquiry as the same was not constituted in consonance with the circular in vogue. In support of his contention Mr. Bhatti, learned counsel for the petitioner has placed reliance on the decision rendered in the case Bansmani v. State of M.P. and Ors., 1980 JLJ 60.
Mr. Ajay Mishra, learned Deputy Advocate General appearing for the respondents No. 1 to 3 raised preliminary objection that there is an alternative remedy as a revision lies against the order passed by the appellate authority under the M.P. Panchayats (Appeal and Revision) Rules, 1995. That apart, in support the orders passed by the competent authorities it was submitted by Mr. Mishra that the prescribed authority as well as the appellate authority have given adequate opportunity to the petitioner to substantiate his point of view and hence, the orders are not untenable on that count. It is also canvassed by him that the petitioner only sought to cross-examine the members of the Committee and at this juncture, he cannot play in fast and loose witnesses who were examined by the committee were not examined by the Collector or for that matter cross-examined by the petitioner. It is argued by Mr. Mishra that the Collector had constituted the committee as per circular and there is no error in its constitution. Mr. Baghel, learned counsel for the respondents No. 4 and 5 adopted the argument as canvassed by Mr. Mishra.
Before I advert to deal with the merits of the case, it is apposite to deal with the preliminary objection raised by Mr. Mishra. An order passed under Section 40 of the Act is appealable before the Commissioner and such an order is revisable under the Rules. Ordinarily, I would have required the petitioner to prefer a revision but in the case at hand two aspects impressed this Court to exercise the jurisdiction under Article 226 of the Constitution namely, this Court had already issued notice in the matter and pleadings are complete in all aspects and the question involved is pure question of law and, therefore, I am not inclined to accept the preliminary objection raised by the learned counsel for the State.
7. Now to the merits of the case. Before I deal with the factual scenario it is apposite to refer Section 40 of the Act. It 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 sub-section "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
(b) gross negligence in the discharge of the duties under this Act.
(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 under this Act."
On a bare reading of the aforesaid provision it is luminously clear that the prescribed authority is mandated in law to cause an inquiry. The proviso explains the said authority is required to afford an opportunity to the person affected. In the case Bansmani (supra) this Court while dealing with Section 116 of the Panchayat Act, 1962 (MP) expressed thus :
"5. It cannot be disputed that opportunity to show cause must be real opportunity. The person proceeded against must not only be told the allegations of misconduct, but he must also be informed of the materials which is sought to be used against him in support of charges so that he may offer his explanation in respect of that material. A person who holds office as a member or as President has a right to continue in the office until the expiry of the term. The order of removal which is passed under Section 116 affects this valuable right and the finding of misconduct on which such an order based casts a stigma in the public life of the person. Having regard to these consequences, we are of the opinion that the power of removal is quasi-judicial in nature. In Bhagat Ram v. State of Punjab, AIR 1972 SC 1571, a provision in the Punjab Municipal Act relating to the removal of members was considered by the Supreme Court. It was held in the case that the order contemplated by the provision removing a member was quasi-judicial in nature and that it was a not only desirable but also essential that the authority passing the order should give reasons. It was further pointed out that all the material should be disclosed to the person concerned so that he may give an effective answer not only to the averments contained in the show cause notice but also to the materials on the basis of which the show cause notice was issued. The principles laid down in Bhagat Ram v. State of Punjab (supra) equally apply to the exercise of power under Section 116 of the Panchayat Act. The State Government while taking action under this provision should not only disclose the charges but also the entire material on which the charges are based to the person concerned so as to afford him real opportunity to show cause against the charges. Further, the State Government should give reasons in support of the order removing the person from office so as to indicate why the explanation submitted is not acceptable. It has recently been observed that the rule requiring reasons to be given is like the principle of audi alteram partem, a basic principle of natural justice Siemens Engg. & Mfg. Co. v. Union of India, AIR 1976 SC 1785. Even in case of administrative orders where rights of parties are affected rules of natural justice have to be followed and it is desirable that the order should contain reasons : Hochtief Germon v. State of Orissa, AIR 1975 SC 2226, Mahabir Jute Mills v. Shibban Lal, AIR 1975 SC 2057 and State of Gujrat v. Ambalal, AIR 1976 SC 2002."
Recently in the case of Kailash Kumar Dangi v. State of M.P. and Ors., 1999 (2) JLJ 280, this Court also reiterated the principles relating to due inquiry. Emphasis was laid on the concept of real inquiry and not a show of inquiry.
The present factual matrix has to be tested on the anvil of the law laid down in the aforesaid decisions. It is not disputed by the learned counsel for the State that the inquiry was conducted by the three members of the Committee behind the back of the petitioner. Such preliminary inquiry may have the sanction of law and the petitioner cannot claim that the said inquiry should be held in his presence but the real inquiry has to be held by the prescribed authority and in the said inquiry where the petitioner has to be given due/adequate/sufficient opportunity. It is submitted by Mr. Bhatti, on a perusal of the impugned order passed by the prescribed authority, it is perceptible that the persons who made complaints against the petitioner were not examined by the prescribed authority and the petitioner could not have cross-examined them but, unfortunately the statements of the said witnesses have been considered by the Collector and been utilised against the petitioner. On a perusal of the record, it is noticed that this fact is borne out on record and the learned counsel for the State is not in a position to dispute the same. Quite apart from that, it is noticeable that the petitioner's application for supply of documents had not been properly construed by the prescribed authority, as the petitioner was supplied only the inquiry report but not the materials/other documents. An interesting feature which cannot be lost sight of is that the appellate authority has called for these documents by order dated 8-4-99 but it does not appear that the petitioner was supplied the said documents. It has been ruled in the case of Bansmani (supra), the documents which are sought to be utilised against the holder of the office, should be supplied to him so that he can have fair chance to rebut the same. As the factual matrix indicates the materials collected against the petitioner were not supplied to him and further the petitioner was not granted sufficient opportunity to produce his evidence to rebut the allegations made against him, I am of the considered view, the order passed by the prescribed authority and affirmed by the appellate authority are vulnerable being violative of principles of natural justice as well as being against the basic concept of adjudicating process and accordingly, the said contained in Annexures P-12 and P-18 are hereby quashed. As the orders being quashed on this limited ground a proper inquiry has to be held. To cut short delay, it is directed that the petitioner shall appear before the prescribed authority on 7-01-2000 and the prescribed authority shall supply him the documents within a period of two weeks therefrom and proceed with the enquiry as per law. It is hereby made clear, after receiving the relevant documents, it would be open to the petitioner to file an additional reply, if he so chooses. The prescribed authority shall conclude the proceeding by end of February, 2000.
8. The writ petition is accordingly disposed of.