Madhya Pradesh High Court
Kailashchandra Jain vs State Of M.P. And Ors. on 4 December, 2002
Equivalent citations: 2002(5)MPHT524
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. Petitioner who is Sarpanch of Gram Panchayat, Kachargaon (Bada), Tehsil Dheemerkheda, District Katni, assails the order of his removal under Section 40 passed by the SDO on the ground that no enquiry in the eye of law was conducted by the SDO and the order of removal has been passed on 25-5-2002, the date which was the national holiday owing to MILAD-UN-NABI.
2. Petitioner was directly elected by the voters as Sarpanch of Gram Panchayat, Kachargaon (Bada), Tehsil Dheemerkheda, District Katni. Proceedings under Section 40 of the M.P. Panchayat and Gram Swaraj Adhiniyam, 1993 were initiated. Show-cause notice was issued. Reply was submitted by the petitioner to imputation of charges. Several charges were levelled. Earlier, preliminary enquiry was directed by the Collector to be conducted by Shri B.P. Sahu, Deputy Auditor and the Enquiry Officer, who submitted the report that the petitioner and Ex-Sarpanch of the Kachargaon Gram Panchayat are guilty of charges. Based thereupon a show-cause notice under Section 40 of the Act was issued. Petitioner denied the charges. Enquiry was conducted. Chief Executive Officer, Janpad Panchayat, Dheemerkheda was directed to conduct the enquiry. CEO, Janpad Panchayat, Dheemerkheda submitted enquiry report (P-2) in compliance of the order dated 14-9-2001 before the Collector. It was held by the CEO that the petitioner is only partly responsible for the charge Nos. 5 and 6. No case of embezzlement was found proved and submitted that only warning be given to the petitioner to be cautious in future. Petitioner submits that with malafide intention the prelimi-nary report submitted by Shri B.P. Sahu has been accepted which was conducted in the absence of the petitioner before issue of show-cause notice under Section 40 of the Act and order of his removal has been passed exercising the power under Section 40 of the Act. Petitioner submits that no enquiry was conducted by Shri B.P. Sahu in presence of the petitioner. No opportunity was given to him for cross-examination of the concerned witnesses. No documents were provided. The impugned order has been passed in most arbitrary manner. Preliminary enquiry was conducted exparte. When fresh enquiry was directed, report of CEO which was submitted ought to have been acted upon. It was not open to accept the preliminary enquiry report of Shri B.P. Sahu. Enquiry Officer did not supply the copies of documents relevant to the charges levelled against him.
3. In the return filed by the Gram Panchayat/respondent No. 3, it is contended that the preliminary enquiry was conducted. There are documents to support the charges. Thus, issue of show-cause notice is enough. Reply was called. Thus, the order is proper. No interference is called for considering the serious nature of the charges levelled against the petitioner.
4. Shri B.P. Sahu has submitted the preliminary enquiry report. Enquiry was conducted by Shri Sahu in December, 2000. Show-cause notice was issued on 19-2-2001 under Section 40 of the Act. The report which has been submitted by CEO in the instant case after issue of show-cause notice is in favour of the petitioner. Earlier preliminary enquiry was ex parte enquiry though the statement of the petitioner was recorded. Thus, in my opinion, it was not open to act upon the preliminary enquiry report to remove the petitioner. Bi parte enquiry ought to have been conducted by the SDO giving petitioner opportunity of cross-examination of the witnesses. Nothing of that sort has been done. No semblance of enquiry has been held by the SDO. This Court in Kamal Kishore Krishna Gopal Khandelwal v. Janpad Panchayat, Nalkheda and Ors., 2000(1) M.P.H.T. 212 = 2000(1) MPLJ 309, has held that enquiry under Section 40 is not an empty formality. There should be compliance of necessary provisions and person should be punished legally. Person has to be given due opportunity of defending himself by conducting the enquiry in the presence of the Sarpanch who is proposed to be removed. The Sarpanch has to be given opportunity of cross- examination of the witnesses, that opportunity has not been given in the case, if the enquiry report submitted was to be acted upon that is in favour of the petitioner. In case SDO was not to agree with it, further enquiry ought to have been held in presence of the petitioner proper enquiry is required subsequent to issue of show-cause notice. Thus, the order of removal of the petitioner cannot be sustained.
5. Learned Counsel for the respondent No. 3 submits that the petitioner may be asked to avail alternative remedy of appeal against the order impugned. I am not inclined to dismiss this writ petition as patent illegality has been committed and jurisdictional error while removing the petitioner. Availability of alternative remedy is not absolute bar. Another reason not to dismiss the writ petition due to availability of the alternative remedy is that fresh election of Sarpanch are scheduled to be held, that would further complicate the issue in case the petitioner is relegated to alternative remedy at this stage and if election is allowed to be held that may go in vain. Availability of alternative remedy is not an absolute bar when principles of natural justice have been violated.
6. The order (P-1) is quashed. Writ petition is allowed. However, SDO is free to conduct an enquiry in accordance with law giving opportunity to the petitioner to participate and defend himself. No election of Sarpanch be held in view of quashment of the order (P-1). Petitioner has to continue as Sarpanch. No order as to costs.