Madhya Pradesh High Court
Smt. Sugan Bai Parmar vs Panchayat And Rural Development ... on 13 March, 2019
1 WP No.29127/2018
HIGH COURT OF MADHYA PRADESH
WP No.29127/2018
Smt. Sugan Bai Parmar Vs. State of MP & Ors.
Indore, Dated:13.03.2019
Shri Manoj Manav, learned counsel for petitioner.
Shri.Lokesh Mehta, learned counsel for respondents
No.1 to 4.
Shri Manish Manana, learned counsel for respondent No.5.
Heard finally.
By this writ petition under Article 226 of the Constitution, the petitioner has challenged the order dated 28/5/2018 passed by the Prescribed Authority removing the petitioner from the post of Sarpanch, gram panchayat, Kanasiya, Tehsil Tarana, Distt. Ujjain u/S.40 of the M.P. Panchayati Raj Evam Gram Swaraj Adhiniyam, 1993 as affirmed by the Commissioner vide order dated 14/11/2018 while dismissing the appeal.
Learned counsel for petitioner submits that the impugned orders are not sustainable because the enquiry as contemplated in proviso to Sec.40(1)(c) of the Act has not been completed within a period of 90 days. He has also submitted that in fact no enquiry has been conducted and no witnesses have been examined, therefore, the order is unsustainable.
As against this, learned counsel for respondents have supported the impugned order.
Digitally signed by Varghese Mathew Date: 26/03/2019 18:37:16 2 WP No.29127/2018Having heard the learned counsel for parties and on perusal of the record, it is noticed that the petitioner was issued the show cause notice dated 27/3/2017 for the proposed action of removal u/S.40 of the Act. The petitioner had given the reply to the show cause notice vide Annexure P/4, but the proceedings remained pending and the final order u/S.40 was passed by the prescribed authority on 28/5/2018 ie. almost after 14 months of giving of the show notice whereas in terms of the proviso to Sec.40(1)(c) of the Act, the order was required to be passed within a period of 90 days from the date of issuance of show cause notice.
The Division Bench of this court in the matter of Dhanwanti Vs. State of MP 2013(2) JLJ 84 has held the said period of 90 days to be mandatory in nature. In the matter of Dhanwanti (supra), the division bench after taking note of the provisions of Sec.40 of the Act has held as under:-
9- Section 40 of the Adhiniyam of 1993 prescribes provision of removal of office bearers of Panchayat, which is 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." Proviso to section 40(c) of the Adhiniyam of 1993 Digitally signed by Varghese Mathew Date: 26/03/2019 18:37:16 3 WP No.29127/2018 prescribes a rider in regard to passing of final order in the inquiry by the prescribed authority, which is as under:
"Provided further that 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 time for disposal of the inquiry but such extension of time shall not be more than 30 days."
The aforesaid proviso was substituted by Act No.20 of 2005. Earlier the proviso was as under:
"Provided that the final order in the inquiry shall as far as possible be passed within 90 days from the date of issue of show cause notice to the concerned office bearer."
10-- After reading the aforesaid proviso, unambiguous and clear meaning is that the prescribed authority has no power and jurisdiction to continue the proceeding beyond the period of 90 days because it is mentioned that if the final order in the inquiry is not passed within a period of 90 days, the prescribed authority shall inform all facts to his next senior officer in writing and request extension of time for disposal of the inquiry but such extension of time shall not be more than 30 days. It means that beyond the period of 90 days from issuance of show cause notice, the prescribed authority has no jurisdiction to continue the inquiry proceedings. 19-- In our opinion, the proviso to section 40(c) of the Adhiniyam of 1993 prescribes a bar of continuing inquiry beyond a particular period.
20-- The matter has to be seen from another angle. If we hold that the time limit is not mandatory, then the inquiry may be continued for unlimited period and that would be against the intention of the legislature because in that circumstance the office bearer, who is eligible for removal on account of misconduct, would continue to work as office bearer Digitally signed by Varghese Mathew Date: 26/03/2019 18:37:16 4 WP No.29127/2018 of the Panchayat. It would hamper the functioning of the Panchayat and adversely affect the working of the Panchayat. This is also against the principle of good governance and negate the amendment in the proviso of section 40(c) of the Adhiniyam of 1993."
That apart, it is also noticed that during the enquiry no witnesses have been examined and no opportunity to cross examine has been given to the petitioner. This Court in the matter of Kailash Kumar Dangi Vs. State of MP & Ors. 1999(2) JLJ 280 has held that the word enquiry in Sec.40(1) of the Act are in the nature of enquiry as envisaged under Article 311 of the Constitution, hence the concerned person is to be informed of the charges and opportunity of hearing is to be given and also the opportunity to adduce the evidence as required to be given. The division bench of this court in the matter of Manita Jaiwar Vs. State of MP & Ors 2009(3) MPLJ 370 as also this Court in the subsequent judgment in the matter of Kailashchandra Jain Vs. State of MP & Ors 2003(3)MPLJ 260 and the order dated 20/12/2018 passed in WP No.22978/2018 in the case of Vikram Singh Vs. State of MP & Ors. has reiterated the same.
Hence, the impugned order in the present case also cannot be sustained since no enquiry has been conducted as contemplated u/S.40(1) of the Act. Hence, the impugned order of removal dated 28/5/2018 passed by the Prescribed Authority and the order dated 14/11/2018 passed by the Appellate Authority are set aside. Needless to say that the subsequent action taken by the respondents in pursuance to the removal order and the appellate order Digitally signed by Varghese Mathew Date: 26/03/2019 18:37:16 5 WP No.29127/2018 will also not survive.
The respondents will be at liberty to take fresh action in accordance with law.
The writ petition is allowed to the extent indicated above.
c.c as per rules.
(PRAKASH SHRIVASTAVA) Judge vm Digitally signed by Varghese Mathew Date: 26/03/2019 18:37:16