Madhya Pradesh High Court
Vinod Kumre vs Department Of Panchayat And Social ... on 28 July, 2017
Bench: P.K. Jaiswal, Virender Singh
1 W.A. No.224/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Hon'ble Shri P.K. Jaiswal and
Hon'ble Shri Virender Singh, JJ.
Writ Appeal No.224/2017
Vinod Kumre S/o Buddhu Singh Kumre
Vs.
State of M.P. and others
-x-x-x-x-x-x-x-x-x-x-
Shri L.C. Patne, learned counsel for the appellant.
Shri Rohit Mangal, learned Government Advocate for the
respondents/State.
-x-x-x-x-x-x-x-x-x-x-
JUDGMENT
(Delivered on 28/07/2017) Per : Virender Singh, J :
Through this intra-court appeal, the appellant (petitioner in writ petition) is challenging the order dated 08/03/2017 passed in W.P. No.8154/2015 (O) whereby the learned Writ Court up-held the removal of the petitioner from the post of Sarpanch vide order dated 23/11/2015.
2. Succinctly stated material facts leading to the present appeal are that the appellant was an elected Sarpanch of Gram Panchayat-Ajnas, Tehsil-Khategaon, District-Dewas. He was 2 W.A. No.224/2017 trapped by Special Police Establishment, Indore on 16/10/2015 while accepting bribe of Rs.10,000/- from the complainant Kamlesh Rathore. FIR No.507/15 under Section 7, 13 (1)(D) & 13 (2) of the Prevention of Corruption Act, 1988 was registered against him. He was arrested and released on bail on 31/10/2015. Jilla Panchayat (Respondent No.3) directed Sub Divisional Officer (SDO) to take action in the matter. The SDO issued show-cause notice on 12/11/2015 (Annexure-P/1) under Section 40 of the Madhya Pradesh Panchayat Raj and Gram Swaraj Adhiniyam 1993 (which shall be referred here-in- after as "Adhiniyam, 1993") and called explanation within 7 days from the date of receiving of the notice. The notice was served on the appellant on 17/11/2015. He filed reply on 23/11/2015 (Annexure-P/2) and denied all the allegations. After considering his reply, the SDO held that continuance of the appellant on the post of Sarpanch is not desirable in the public interest and removed him vide order dated 23/11/2015.
3. The appellant challenged his removal by filing a writ petition No.8154/2015 which was dismissed vide order dated 08/03/2017. Learned Writ Court; in view of the judgment passed by Division Bench of this Court in Narendra Sharma vs. State of M.P. passed in W.A. No.477/2016 dated 08/12/2016 which was later confirmed by Hon'ble the Supreme Court in SLP (C) No.10110/2017 vide order dated 10/04/2017, held that an elected member can be removed in exceptional circumstance without holding inquiry and without meeting the requirements of principle of natural justice and dismissed the petition. This order is under 3 W.A. No.224/2017 challenge in the present writ appeal.
4. The appellant has challenged the order on the grounds that the Learned writ court did not consider that the facts of the present case are distinguishable from the case of Narendra Sharma (supra) as in Narendra Sharma's case (supra); the investigation was complete and the charge-sheet had already been filed whereas in the present case investigation is incomplete and no Challan has been filed so far.
5. It is further contended by the appellant that the learned writ court incorrectly held that the provisions of Section 40 of Adhiniyam, 1993 and Section 41 (A) of M.P. Municipalities Act, 1961 (in short "the Act, 1961") are pari materia as no inquiry is contemplated under Section 41 (A) of the Act, 1961 for removal of President or Chairman of the Committee whereas the inquiry is contemplated under Section 40 of the Adhiniyam, 1993 as held in Kamlesh Kumar vs. State of M.P. reported in 2000 (1) MPHT 143 which was decided by this Court by relying upon the law laid down in the Case of Vallabh Das vs. State of M.P. 1998 JLJ 303. Thus, order passed by learned single judge rendered in complete oblivion of these material dictums and deserves to be set-aside in the interest of justice.
6. It is further contended that the learned writ court has erred in not considering the fact that opportunity of hearing as contemplated under the provisions of Section 40 of Adhiniyam, 1993 should be a real opportunity. Before proceeding further; the accused must not only be told the allegation of misconduct but must also inform all the materials, which is sought to be 4 W.A. No.224/2017 used against him in support of charges so that he may offer his explanation in respect of that material. In the present case, the appellant has never been communicated or served with the copy of the letter dated 31/10/2015 sent by respondent No.3 addressed to respondent No.4, which formed basis of issuance of show-cause notice to the appellant, which ultimately resulted into his removal.
7. The appellant asserted that the order should also disclose all the material upon which the authority has relied upon to provide the concerned person opportunity to submit an effective reply not only to the averments contained in the show cause notice but also to the materials on which basis the show cause notice was issued. In this case, this procedure has not been adopted.
8. It is also pleaded by the learned counsel for the appellant that removal of an elected member is quasi judicial in nature; therefore, it is essential that the authority should give reasons for passing any order. In the present case; no reasons have been assigned so far and in the absence of reasons; it is very difficult for the appellant to ascertain as to why the explanation offered by him was not accepted by Respondent No.4. In the absence of reasons, the order does not reflect the application of mind on the part of the respondent No.4.
9. It is further averred that learned Single Judge has not appreciated the fact that the appellant was falsely implicated in the criminal case. Learned Single Judge has also not appreciated the fact that complainant-Kamlesh Rathore himself has stated that his complaint was based on incomplete 5 W.A. No.224/2017 information. All these facts show that the learned single judge has mechanically followed the order passed by in Narendra Sharma case (supra).
10. According to the learned counsel for the appellant, the learned Single Judge has not considered the law laid down by this Court in the cases of Babita Leela Hare vs. Surendra Rana 2004 (5) MPHT 79, Kailash Chandra Jain vs. State of M.P. and others 2003 (3) MPLJ 260, Faiz Mohammed Faiz vs. State of M.P. and others 2004 (4) MPHT 293, Manita Jaiwar vs. State of M.P. 2009 (3) MPHT 70 and Maya Choudhary vs. State of M.P. and others 2012 (5) MPHT 240.
11. Learned counsel further pointed out that the decision of the SDO was not independent and it was passed under the dictate of respondent No.3 and also passed in a great haste, as the appellant submitted his reply on 23/11/2015 and on the very same day without considering the contentions raised by him the impugned order has been passed.
12. In such circumstance, it is submitted by the learned counsel for the appellant that the impugned order deserves to be set-aside keeping in view the law laid down by this Court in the case of Bans Mani vs. State of M.P. 1980 JLJ 60 as followed in case of Rajaraj Vs. State of M.P. 2001 MPHT 490.
13. In their joint reply; Respondents have denied all the allegations and controverted all the grounds raised by the appellant. It is submitted by respondents that the impugned order passed by SDO is an appealable order under Rule 3 of 6 W.A. No.224/2017 M.P. Panchayat (Appeal and Revision) Rules, 1995. The appellant has not availed that remedy, therefore present appeal is not maintainable. On the other points, supporting the order of the learned Writ Court, they have prayed for dismissal of the appeal.
14. First of all we would like to consider the provisions of Section 40 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 and Section 41 (A) of the M.P. Municipalities Act, 1961, which reads thus:
Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993
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
(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 7 W.A. No.224/2017 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.
Section 41 (A) of the Madhya Pradesh Municipalities Act, 1961 :-
41-A. Removal of President or Vice-President or Chairman of a Committee.-
(1) The State Government may, at any time, remove a President or Vice-President or a Chairman of any Committee, if his continuance as such is not in the opinion of the State Government desirable in public interest or in the interest of the Council or if it is found that he is incapable of performing his duties or is working against the provisions of the Act or any rules made thereunder or if it is found that he does not belong to the reserved category for which the seat was reserved.
(2) As a result of the order of removal of Vice-
President or Chairman of any Committee, as the 8 W.A. No.224/2017 case may be, under sub-section (1) it shall be deemed that such Vice-President or a Chairman of any Committee, as the case may be, has been removed from the office of Councillor also. At the time of passing order under sub-section (1), the State Government may also pass such order that the President or Vice-President or Chairman of any Committee, as the case may be, shall Ire disqualified to hold the office of President or Vice- President or Chairman, as the case may be, for the next term :
Provided that no such order under this section shall be passed unless a reasonable opportunity of being heard is given.]
15. Plain and simple reading of both these provisions shows that both provisions are directly and substantially the same or in other words provisions of Section 40 of the Adhiniyam, 1993 are Pari materia to the provisions of Section 41-A of the Municipalities Act, 1961. Thus, no doubt remains that the subject matter of the present appeal or point in issue of the case in hand are squarely covered by the judgement passed in Narander Sharma case (supra), which the learned Writ Court has referred in his order.
16. The appellant was implicated falsely or correctly is a matter of fact which has to be appreciated in an appropriate criminal proceedings. Prima facie this is a fact that he has been trapped while taking bribe and a case is registered against him.
Whether he is guilty or not for the offence alleged is not the question in the present proceedings but there can be no doubt that prima facie the appellant is charged for a grave misconduct. If such person is allowed to continue on a public post like Sarpanch, it would not only spread a wrong message 9 W.A. No.224/2017 in the Society but also frustrate the justice and also sincere and honest persons. It would not be in the interest of justice in any way.
17. Considering all these aspects, in a similar actual situation, a Division Bench of this Court in Narendra Sharma (supra) has held the action of Competent Authority justified. This judgment is later endorsed by Hon'ble the Supreme Court, as stated above.
18. Learned counsel for the appellant placed reliance on the judgment of this Court passed in Babita, Leela Hare, Kailash Chandra Jain, Faiz Mohammed, Manita Jaiwar and Maya Choudhary case (supra) (as mentioned in para
10). In Kailash Kumar case the Sarpanch leased out several pieces of land for constructing house to the persons who were not eligible, in Ballabh Das case 10 out of 20 punches remained absent continuously from the meeting, in Maya Chaudhary case a complaint was made which was required to be inquired, in Manita Jaiwar and Faiz Moh. Faiz case financial irregularities were committed, in Kailash Chandra Jain case allegations of embezzlement were made. In all these judgments; the Court has considered various aspects of Section 39 and 40 of Adhiniyam, 1993 and passed the order in the attaining facts and circumstances of the case held that the inquiry was necessary. But the case of present appellant is different and distinguishable from these authorities, therefore, no benefit can be extended on the basis of these judgments. We are not burdening our order judgment by discussing in detail the facts and the analogy expressed in each and every 10 W.A. No.224/2017 case; but we have considered them and find that the opinion expressed or finding of the cases do not apply in the present case, therefore, these cases are of no avail to the appellant.
19. It is objected by the respondents that the impugned order was an appealable order under Rule 3 of M.P. Panchayat (Appeal and Revision) Rules, 1995. Rule 3 reads as under :-
3. Appeal and appellate authorities. -
Save where it has been otherwise provided in the Act or rules or bye-laws made thereunder, an appeal shall lie, -
(a) in the case of an order passed by the Sub-Divisional Officer under any provision of the Act or rules or bye laws made thereunder to the Collector;
(b) in the case of an order passed by the Collector under any provision of the Act or rules or bye laws made thereunder to the Commissioner;
(c) in the case of an order passed by the Commissioner or Director of Panchayats to the State Government;
(d) in the case of an order passed by the Panchayat specified in Column (1) of the Table below to the authority specified in the corresponding entry in Column (2) thereto.
TABLE
-1- -2-
(a) Gram Panchayat Sub-Divisional Officer.
(b) Janpad Panchayat Collector.
(c) Zila Panchayat Commissioner.
20. Undisputedly, the appellant has not preferred any appeal before the Officer contemplated in this Rule. Thus, it is clear that before coming to this Court, appellant did not avail the alternate remedy available to him. On this ground also the 11 W.A. No.224/2017 petition deserves to be dismissed.
21. In view of the aforesaid discussions, when the law is clear and its compliance is proper, then in our considered opinion, the learned Writ Court has committed no error in dismissing the petition. We do not find any ground to interfer in the impugned order of learned Writ Court. The present appeal is bereft of merit, deserves to be and is dismissed accordingly.
(P.K. Jaiswal) (Virender Singh)
Judge Judge
Aiyer*