Madhya Pradesh High Court
M.P. State Agriculture Marketing Board ... vs Smt. Vidhyadevi Rawat on 23 March, 2018
1
THE HIGH COURT OF MADHYA PRADESH
W.A. No. 258/2018
M.P. State Agriculture Marketing Board and others
Vs.
Smt. Vidhyadevi Rawat
Gwalior, 23/03/2018
Shri S.P. Jain, learned counsel for the
appellants.
Heard on admission.
This appeal under Section 2(1) of Madhya
Pradesh Uchcha Naayalaya (Khand Nyay Peeth Ko
Appeal), Adhiniyam 2005 is directed against the
order dated 31/01/2018 passed in Writ Petition No.
1180/2017.
The writ petition was against the order dated
07/02/2017 passed by appellant No. 2 in purported
exercise of his powers under Section 55 of M.P.
Krishi Upaj Mandi Adhiniyam, 1972 removing
respondent No. 1 as Chairperson, Krishi Upaj Mandi
Samiti Sabalgarh, Morena, on the charge of misconduct for not preventing the felling of trees (Sheesham Tree) which, as alleged was felled by her brother-in-law, i.e., brother of her husband.
Respondent No. 1 was elected as Chairperson 2 on 07/01/2013. On 05/01/2016, she was served with a show cause notice on the allegation that she is responsible for felling of 3 Sheesham trees in the Mandi premises by her brother-in-law/ Badshah Singh Rawat. She denied all the allegations vide her reply filed on 06/02/2016 of having any association with said Badshah Singh Rawat, a teacher living in Gwalior. It was also stated that an FIR vide Crime No. 342/2015 for offence punishable under Section 379 IPC was lodged against miscreants on 04/09/2015. It was also stated in the reply that when the said incident (felling of trees) was complained of i.e. on 29/07/2015 between 12PM to 4PM, she was holding meeting of Mandi Committee which continued upto 5PM. The respondent No. 1 was however found guilty of violation of stipulation under sub-section (1) of Section 55 of Adhiniyam 1952 and besides removing her from the post she has been debarred from contesting election for membership of Mandi for six years by order dated 07/02/2017.
On the challenge of the order dated 3 07/02/2017 in writ petition, learned Single Judge vide impugned order has set aside the said order. Learned Single Judge found that the material on the basis whereof the respondent No. 1 was proceeded, i.e., the preliminary enquiry report, was not furnished to her; accordingly, relying on the principle of law laid down in Mahendra Singh Vs. State of M.P. & others [2005 (4) MPHT 25], the proceedings were found to be vitiated for violation of principle of natural justice.
In Mahendra Singh (supra), it is held:-
"13. In appeal, the respondent No. 1 has mentioned that the petitioner was given an opportunity to cross-examine the witnesses. As stated hereinabove, there is nothing in the order dated 4-2-2002 whereby the case was fixed for 4-3-2002 for recording the statements of witnesses. On the contrary, from perusal of order dated 4-3-2002 it appears that all the alleged witnesses who are employees of the respondents were heard. This procedure is not known to law. It is not disputed that the statements of none of the witnesses 4 were recorded in the presence of the petitioner.
14. In view of the law laid down by the Hon'ble Supreme Court reported in AIR 2001 SC 2524, Tarlochan Dev Sharma Vs. State of Punjab and others (supra), wherein it is held that one of the requirements of the principles of natural justice, as incorporated in second Proviso to Section 22, is that the reasons for the proposed removal have to be communicated to the person proceeded against. The purpose of such communication is to enable him to furnish an explanation of his conduct or his act or omission which is likely to be construed as an abuse of power. It is clear that the facts constituting gravemen of the charge have to be communicated. It follows as a necessary corollary therefrom that what has not been communicated or not relied on in the show-cause notice as a ground providing reasons for the proposed removal can not be relied upon as furnishing basis for the order of removal. The person proceeded against under Section 22 of the Act has to be made aware of the precise charge which he is 5 required to meet and therefore he must be apprised of the exact content of the abuse of power attributed to him. The authority taking decision must apply its mind also to the explanation furnished by the person proceeded against and this must appear from the order passed under Section 22 of the Act.
15. From perusal of Section 55 of the Act, it is evident that a person who has been removed as member of the Marketing Committee for misconduct or negligence or incapacity to perform his duty, shall also not be re-elected or renominated as a member of the Marketing Committee for a period of six years from the date of such removal.
16. Since the preliminary enquiry report was not furnished to the petitioner and along with the show-cause notice Annexure P-l, the relevant documents were not supplied to the petitioner and the statement on which reliance was placed was also not given and apart from this, neither opportunity of cross- examination was given nor the case was fixed for cross-examining the witnesses, therefore, it can not be said that a reasonable opportunity was given to the 6 petitioner."
Thus, where an action is contemplated against an incumbent, the consequences whereof, if established, are punitive, such as incumbent is entitled for reasonable opportunity of hearing which is not only confined to giving a show cause notice but all such material on the basis whereof the show cause is drawn.
Though it is contended on behalf of the appellants that the respondent was afforded an opportunity of hearing; however, no cogent material is adverted at to establish that the fact finding report was tendered to respondent No. 1 and that the persons who has deposed against the respondent No. 1 in the said report were presented for cross-examination which is a bare minimum requirement to be adhered to before taking a drastic action of removal and debarment.
Learned Single Judge further found of non- fulfillment of ingredients in sub-section (2) of Section 55 of Adhiniyam, 1972.
Sub-section (1) of Section 55 of Adhiniyam 7 1972 empowers the State Government on its own motion, on a resolution passed by a majority of two third of the members constituting the Market Committee for the time being remove any member of the Market Committee for misconduct or neglect of or incapacity to perform his duty. Furthermore, sub-section (2) of Section 55 of Adhiniyam, 1972 empowers Director to remove any Chairman or Vice-Chairman of a Market Committee from his office, for misconduct, or neglect of or incapacity to perform the duty or for being persistently re-miss in the discharge of his duties.
The action against respondent No. 1 as evident, is taken not under sub-section (1) of Section 55, but under sub-section (2) of Section 55 of Adhiniyam 1972. Therefore, incumbent it was upon the Director to have established the misconduct, which means wrong or improper conduct i.e. conduct in violation of a definite rule of action. It ordinarily means failure to do what is required of a person to be done. (Please see Shaikh Mohammad Vs. G.G. In council : AIR 1954 Nagpur 337). 8
Present being not a case that an incumbent, Chairperson as present, would also be vicariously liable for an act of miscreant, like a person who allegedly fell trees. Nor was there any charge of inaction, when in fact, the report was lodged with the police; however, there is no material on record to establish that the police has found the named person as the culprit, the action of the present appellant in terminating and debarring the respondent No. 1 is rightly found to be unsustainable in law.
In view whereof, we refrain from causing any indulgence.
Consequently, appeal fails and is dismissed. No costs.
(Sanjay Yadav) (Anand Pathak)
Judge Judge
shubh*
Digitally signed by
SHUBHANKAR MISHRA
Date: 2018.03.26 18:12:06 +05'30'