Madhya Pradesh High Court
Rajesh Barkade vs The State Of Madhya Pradesh on 1 February, 2018
Equivalent citations: AIR 2018 MADHYA PRADESH 221, (2018) 2 MPLJ 148
-1-
W.P. No. 18135/2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
Writ Petition No. : 18135/2017
Parties Name : Rajesh Barkade
-Versus-
The State of Madhya Pradesh & others
Bench Constituted : Hon'ble Shri Justice J.K.Maheshwari
Judgment delivered by : Hon'ble Shri Justice J.K.Maheshwari
Whether approved for reporting : Yes
Name of counsel for the parties : For the appellant :
Shri A.A.Pandey, Advocate.
For the respondent/State :
Shri Sudeep Deb, Government Advocate.
Law laid down :
Removal of the office bearer of the Panchayat under Section 40(1) of the
M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 is permissible if he is
found guilty either of misconduct or his continuation on the post is undesirable in
public interest. Such removal can be made after issuance of show cause notice
and affording an opportunity of hearing by passing an order by the prescribed
authority or the State Government.
The time limit prescribed under the second proviso of Section 40(1) of the
M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 is directory or
mandatory..........
Though the word "shall" used in the previous part of the proviso specifying
the time of ninety days but for extension of time of thirty days, the words used
"such extension shall not be more than thirty days" made it mandatory to pass
final order from the date of issuance of the show cause notice. The principle of
statutory interpretation has been discussed in this regard.
The words used in the statute itself are not sufficient but the intention of the
legislature ought to be gathered to which the statute using those words have
been couched for. In case time limit has been prescribed to suppress the public
mischief and to promote the public justice in the context of the language, it may
be held mandatory as specified in the second proviso to Section 40(1) of the M.P.
Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993.
Significant Paragraph Nos. : 16, 17, 21, 22, 23, 24, 25 & 26
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(2)
W.P. No. 18135/2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Single Bench : Before Hon'ble Shri Justice J.K. Maheshwari)
**
Writ Petition No. 18135/2017
Rajesh Barkade
-Versus-
The State of Madhya Pradesh & others
**********
Shri A.A.Pandey, Advocate for the petitioner.
Shri Sudeep Deb, Government Advocate for the respondents/State.
**********
ORDER
Jabalpur, Dated : 1.2.2018
1. This petition under Article 226 of the Constitution of the India, has been filed by the petitioner challenging the order Annexure P-5 dated 12.10.2017 passed by respondent No.3 and also prayed to culminate the proceeding pending in furtherance to the show cause notice Annexure P-1 dated 14.6.2016 issued under Section 40(1) of the Panchayat Act because the order finalizing the enquiry within the time so prescribed in the second proviso has not been passed.
2. The undisputed facts of the case are, the petitioner is the elected Sarpanch of the Gram Panchayat, Amanala, Janpad Panchayat, Mandla District Mandla. He was served with a show cause notice Annexure P-1 dated 14.06.2016, as to why he should not be removed in exercise of the power under Section 40 (1) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred as the "Panchayat Act"). On receiving the (3) W.P. No. 18135/2017 said notice, reply Annexure P-2 was filed, but the final order completing the enquiry has not yet passed, however, appropriate directions have been sought to quash the proceedings.
3. It is said, as per proviso to Section 40(1) of the Panchayat Act final order ought to be passed within the period of ninety days otherwise the appropriate authority may seek extension in writing from the immediate senior officer, who can grant only thirty days' extension. It is urged, to pass the order from the date of show cause notice, ninety days' time extendable to thirty days total period of 120 days is specified. When the proceedings were not dropped, he submitted an application before the Sub Divisional Officer on 14.09.2016 to close the proceedings. The Sub Divisional Officer vide order dated 17.05.2017 referred the matter to the Chief Executive Officer Jila Panchayat, Mandla in reference to the Letter No.F/5- 2/2017/22/Pan.-1/Bhopal dated 03.05.2017 of the Government of Madhya Pradesh, Panchayat and Rural Development Department, Bhopal. The Chief Executive Officer in place of extension of time fixed various dates and vide order dated 12.10.2017 rejected the application of the petitioner, however, this petition has been filed seeking quashment of the said order and to drop the proceeding of Section 40(1) of the Panchayat Act.
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4. Learned counsel for the petitioner submits that as per Section 40(1) of the Panchayat Act and its proviso, after issuance of the show cause notice, final order if not passed within a period of ninety days by the prescribed authority, he is supposed to ask extension reporting the matter to immediate Senior Officer in writing. The said extension of time shall not be more than thirty days. However, from the date of issuance of show cause notice total period of 120 days is prescribed to pass final order, including the extended period. In case the order has not been passed, the proceeding shall be deemed to be closed. In support of the said contention, reliance has been placed on a Division Bench judgment this Court in the case of Dhanwanti Vs. State of M.P. and others reported in 2013 (2) JLJ
84.
5. On the other hand, learned Government Advocate though opposed the prayer but he is not in a position to dispute that show cause notice was issued on 14.06.2016 and the final order under Section 40 has not yet passed. He is also not in a position to dispute the legal position emerged by the judgment of this Court in the case of Dhanwanti (supra). It is his contention that the proviso of Section 40 (1) of the Panchayat Act is not mandatory but directory, therefore, the proceedings cannot be dropped.
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6. After having heard learned counsel for the parties and to advert the arguments as advanced, first of all the provision of Section 40 of the Panchayat Act is required to be seen which is reproduced 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
(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 pecuniary benefits to any (6) W.P. No. 18135/2017 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 time for disposal of the inquiry but, such extension of time shall not be more than 30 days.] Subs. By M.P. Act 20 of 2005, w.e.f.
30.08.2005 (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.
The above proviso has been inserted on 30.8.2005, however to understand the intention of the legislature, why the earlier proviso is deleted inserting the new, it is essential to take note of the then unamended proviso, which is reproduced as under:-
""Provided that the final order in the inquiry shall as far as possible be passed within 90 (7) W.P. No. 18135/2017 days from the date of issue of show cause notice to the concerned office bearer."
7. After perusal of the said, it reflects that the State Government or the prescribed authority at any time after an enquiry, if deem fit may make an order to remove an office bearer, if he is guilty of misconduct in discharge of the duties, or his continuation in the office is undesirable in the public interest. The misconduct may include the action adversely affecting sovereignty, unity and integrity of India; or the harmony and the spirit of common brotherhood amongst the people of the State transcending religious, linguistic, regional, caste or sectional diversities; or the dignity of women; or gross negligence in discharge of the duties under the Panchayat Act; or the use of position or influence directly or indirectly in securing employment to any relative in the Panchayat; or the action to extend the pecuniary benefits to any relative providing any type of lease to get done any work through them in the Panchayat. The first proviso specify the procedure of removal of the office bearer, after giving a show cause notice and affording an opportunity of hearing. While second proviso, as amended on 30.8.2005, prescribes a time limit of ninety days to pass a final order in the enquiry, which may be extendable by immediate senior to the period of thirty days. While specifying the time limit to pass the order within ninety days, the word 'shall' has been used, and to extend the time the word "such extension of time shall not be more than thirty days". Meaning (8) W.P. No. 18135/2017 thereby, the outer limit to pass the order of removal of the office bearer is one twenty days. Indeed the consequence for not disposing the enquiry within the said time limit has not been prescribed in the Panchayat Act.
8. In the facts of the case at hand, the show cause notice under Section 40(1) of the Panchayat Act was issued on 14.6.2016 and despite lapse of about one and a half years, the enquiry is pending and final order is awaited, however, the word "shall" used in the second proviso to complete the enquiry within ninety days and in case of extension of time the words used "shall not be more than thirty days" is required to be interpreted whether it is mandatory or directory thereby a logical conclusion may be arrived to drop the proceedings. As the second proviso has been inserted after amendment w.e.f. 30.8.2005, prior to it, in the enquiry order shall as far as possible be passed within ninety days, however, the intention of legislature to bring the amended proviso replacing the previous one is also required to be seen in right perspective.
9. In this regard the guidance can be taken from the statutory interpretation by Justice G.P. Singh, 14th Edition; whereby the word "shall" used is ordinarily mandatory but it is sometimes not so interpreted, if the context or the intention otherwise demands. When the statute uses the word "shall", prima facie it is mandatory but the (9) W.P. No. 18135/2017 Court may ascertain the real intention of the legislature by carefully attending to the scope of the statute. In this regard some judgments of Hon'ble the Supreme Court are relevant, which are referred to take guidance.
10. In the case of Hari Vishnu Kamath Versus Syed Ahmad Ishaque and others reported in AIR 1955 SC 233 before Hon'ble the Supreme Court, the question arose regarding interpretation of Rule 47(1)(c) of Representation of the People Act, 1951. In the context of the said Rule, Hon'ble the Supreme Court has laid down certain guidelines to understand, the language of enactment is in the form either "Mandatory or Directory". The Supreme Court in Para-25 held as under:-
25. It is well established that an enactment in form mandatory might in substance be directory, and that the use of the word "shall" does not conclude the matter. The question was examined at length in Julius v. Bishop of Oxford - 5 AC 214 and various rules were laid down for determining when a statute might be construed as mandatory and when as directory. They are well-known, and there is no need to repeat them. But they are all of them only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context. What we have to see is whether in Rule 47 the word "shall" could be construed as meaning "may". Rule 47(1) deals with three other categories of ballot papers, and enacts that they shall be rejected. Rule 47(1)(a) relates to a ballot paper which "bears any mark or writing by which the elector can be identified".(10) W.P. No. 18135/2017
The secrecy of voting being of the essence of an election by ballot, this provision must be held to be mandatory, and the breach of it must entail rejection of the votes. That was held in Woodward v. Sarsons on a construction of Section 2 of the Ballot Act, 1872. That section had also a provision corresponding to Rule 47(1)(b), and it was held in that case that a breach of that section would render the vote void. That must also be the position with reference to a vote which is hit by Rule 47(1)(b). Turning to Rule 47(1)(d), it provides that a ballot paper shall be rejected if it is spurious, or if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established. The word "shall" cannot in this sub- rule be construed as meaning "may", because there can be no question of the Returning Officer being authorized to accept a spurious or unidentifiable vote. If the word "shall" is thus to be construed in a mandatory sense in Rule 47(1)(a),
(b) and (d), it would be proper to construe it in the same sense in Rule 47(1)(c) also. There is another reason which clinches the matter against the first respondent. The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed, in the case of the latter it is sufficient that it is substantially complied with. How is this rule to be worked when the Rule provides that a ballot paper shall be rejected? There can be no degrees of compliance so far as rejection is concerned, and that is conclusive to show that the provision is mandatory.
11. The Apex Court has laid down some principles in the case of State of U.P. Versus Manbodhan Lal Srivastava reported in AIR 1957 SC 912, has held as under:-
(11)W.P. No. 18135/2017
11. An examination of the terms of Article 320 shows that the word "shall" appears in almost every paragraph and every clause or sub-clause of that article. If it were held that the provision of Article 320(3)(c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to be mandatory. If they are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in clause (3) of Article 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in the matter. This result could not have been contemplated by the makers of the Constitution.
Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on Statutory Construction- Article 261 at p.516, is pertinent":
"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other....."
12. In the case of State of U.P. and others Versus Babu Ram Upadhya reported in AIR 1961 SC 751 the Apex Court has (12) W.P. No. 18135/2017 considered the case of Hari Vishnu Kamath (supra) and Manbodhan Lal Srivastava (supra) and held as under :-
28. The question is whether Rule I of para 486 is directory. The relevant rule says that the police officer shall be tried in the first place under Chapter XIV of the Criminal Procedure Code. The word "shall" in its ordinary import is "obligatory";
but there are many decisions wherein the courts under different situations construed the word to mean "may". This Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque dealt with this problem at p.1125 thus:
"It is well established that an enactment in form mandatory might in substance be directory and that the use of the word 'shall' does not conclude the matter."
It is then observed:
"They (the rules) are well-known, and there is no need to repeat them. But they are all of them only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context."
The following quotation from Crawford on the Construction of Statutes, at p.516, is also helpful in this connection:
"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other....."
This passage was approved by this Court in State of U.P. Vs. Manbodhan Lal Srivastava. In Craies on Statute Law, 5th Edn., the following passage appears at p. 242:
"No universal rule can be laid down as to whether mandatory enactments shall be (13) W.P. No. 18135/2017 considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed."
A valuable guide for ascertaining the intention of the Legislature is found in Maxwell on the Interpretation of Statutes, 10th Edn., at p.381 and it is:
"On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them."
This passage was accepted by the Judicial Committee of the Privy Council in the case of Montreal Street Railway Company v. Normandin - LR (1917) AC 170 and by this Court in State of U.P. v. Manbodhan Lal Srivastava.
29. The relevant rules of interpretation may be briefly stated thus: When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the (14) W.P. No. 18135/2017 provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.
13. In the case of Commissioner of Sales Tax, U.P. Lucknow Versus Parson Tools and Plants, Kanpur reported in AIR 1975 SC 1039, the Apex Court has held that an enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others, is that a statute is to be expounded according to the intent of them that made it.
14. In the case of Mohan Singh and others Versus International Airport Authority of India and others reported in (1997) 9 SCC 132 in Para-26 the Supreme Court has crystallized that the effect of word "shall" would be mandatory or directory must be seen looking to the object of the enactment. Its effect must be given to all the provisions harmoniously to suppress public mischief and to promote public justice. The Court has held as under:-
26. Thus, this Court, keeping in view the objects of the Act, had considered whether the language in a particular section, clause or sentence is directory or mandatory. The word 'shall', though prima facie gives impression of being of mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. In that (15) W.P. No. 18135/2017 behalf, the court is required to keep in view the impact on the profession necessity of its compliance; whether the statute, if it is avoided, provides for any contingency for non-compliance; if the word 'shall' is construed as having mandatory character, the mischief that would ensue by such construction; whether the public convenience would be subserved or public inconvenience or the general inconvenience that may ensue if it is held mandatory and all other relevant circumstances are required to be taken into consideration in construing whether the provision would be mandatory or directory. If an object of the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public without much furthering the object of enactment, the same should be construed as directory but all the same, it would not mean that the language used would be ignored altogether.
Effect must be given to all the provisions harmoniously to suppress public mischief and to promote public justice.
15. In the case of Basavaraj R. Patil and others Versus State of Karnataka and others reported in (2000) 8 SCC 740 the Apex Court has made it clear that where the legislative intention is clear, the Court should not interpret the provision contrary to it or add something to it.
16. On the basis of the said pronunciation of law the word "shall" in the enactment may be in mandatory form or might be in substance directory. The words "shall" or "may" used in the context aids to ascertain the true intention of the legislature which is determining (16) W.P. No. 18135/2017 factor. The distinction which provision is mandatory or which is directory is that the previous is to be strictly observed and the later is substantially required to be complied with. In case the word "shall" used in the statute, it is generally taken in a mandatory sense. It does not mean that in every case it shall have the same effect; means until the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid then it would be termed as mandatory. It is further said that the nature of the word used would depend upon the intent of the legislature and not upon the language in which the intent is couched. The intention of the legislature should not only be gathered from the phraseology of the provision but also by considering its nature, design, and the consequences which would follow from construing it the one way or the other. While interpreting the statute, it is the duty of the Court of justice to try to get the real intention of the legislature by carefully attending the scope of the statute. In case the statute prescribes regarding performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature. Such would be deemed to be directory. A statute is to be expounded according to the intent of them that made it. The effect of the provisions must be harmoniously construed to suppress (17) W.P. No. 18135/2017 public mischief and to promote public justice, in the context of the object of the enactment.
17. In view of the foregoing legal position, now to interpret the word 'shall' used in the second proviso to pass a order within ninety days in the enquiry contemplated under second proviso of Section 40(1) of the Panchayat Act and in case it is not passed, to extension of time the words used "shall not be more than thirty days" and the intention of the legislature amending the second proviso replacing the previous one is required to be understood in the facts of the case.
18. It is seen Section 40 of the Panchayat Act is a part of Chapter III, which deals the establishment of Panchayats. It lay down the provision for the constitution of Panchayat, duration, differentiation in between Gram Panchayat, Janpad Panchayat and Jila Panchayat, their wards, qualification for voter and candidate, term of the office of the office bearer, no confidence motion, recalling of office bearer, the constitution of Gram Panchayat and election of the Sarpanch and the Upsarpanch, thereafter, notification of the election and its first meeting as prescribed. Section 21 deals with no confidence motion against the Sarpanch and the Upsarpanch and Section 21-A deals the recalling of the office bearers of Gram Panchayat. Sections 22 to 35 deals the constitution of Janpad Panchayat and Jila Panchayat, (18) W.P. No. 18135/2017 however, it is not related to the case at hand. Section 36 deals with disqualification, Section 37 resignation, Section 39 suspension and Section 40 deals the removal of the office bearers of Panchayat. Meaning thereby in the Panchayat Act, chapter III deals the establishment of Gram Panchayat, Janpad Panchayat and Jila Panchayat, election of their office bearers but simultaneously it also deals that how and in what manner, they may recall, suspend or removed.
19. The present case relates to removal of the Sarpanch. In case an office bearer is found guilty of misconduct in discharge of the duties or his continuation in the office is undesirable in larger public interest, he may be removed. The scope of Chapter III and the purpose to which Section 40 introduced was that if the elected office bearer is doing an act of misconduct or affecting public at large then he should not be allowed to hold the post and the action against him must be initiated and also completed within time frame. Prior to the amendment in second Proviso of Section 40(1) of the Panchayat Act, the final order shall as far as possible be passed within ninety days. But after amendment by using the word "shall" time is prescribed in previous part and to extend it words used is "such time shall not be extended more than thirty days". The intention of the legislature can be understood bringing the amendment in second Proviso. The framers of law might have kept in mind that the person (19) W.P. No. 18135/2017 who is guilty of misconduct or holding the office by him is not in larger public interest should not be allowed to hold the office. While the other side of the coin is, if any innocent office bearer against whom allegation is levelled should not be allowed to face the agony for long time, due to fault of the public servants. However, for specifying the period to pass a final order within ninety days the word 'shall' has been used and in case extension of time is sought, it would not be more than thirty days by immediate senior officer to the prescribed authority, therefore, the words were used that 'such extension of time shall not be more than thirty days'.
20. Meaning thereby the legislation is intended to culminate the enquiry of Section 40(1) within the prescribed time limit and either to remove or retain the office bearer as early as possible. In my considered opinion by using the word "shall" in the previous part of the second proviso to pass a final order within ninety days is directory but later part of the proviso is mandatory by using the words "shall not be more than thirty days". Thus, it is clear that the order must be passed in the enquiry within a period of ninety days but not later than one twenty days. Indeed it is correct that consequence due to non observance of time limit to pass order of removal of an office bearer has not been specified but what is required to be gathered is, intimation from the phraseology, nature and design, the convergence for one way or other, ought to be seen. (20) W.P. No. 18135/2017 Simultaneously, it may be seen that by the enactment duty is casted on the prescribed authority to do the things within the prescribed time limit. If not done, what may be the consequence and would it amounting to suppress public mischief creating hurdle to promote public justice.
21. In view of the foregoing legislative intent, it is clear that if an office bearer of the Panchayat is guilty of misconduct or his continuation in the office is undesirable in the public interest, he should be removed but those proceedings of removal should not be continued for the inordinate period, therefore, the time limit to culminate the enquiry and to pass a final order has been prescribed bringing the amendment in second Proviso of Section 40(1) of the Panchayat Act. The reason behind may be the office bearer is guilty of misconduct or his continuation is not in the larger public interest then such person should not be continued and required to be removed. But simultaneously in case the allegation of the alleged misconduct are not found correct in enquiry without having any iota of evidence, then for such frivolous and vexatious allegations, the proceedings started by the show cause notice must be dropped and should not be continued for inordinate period. It is not out of context to mention here that the election of the office bearer of the Panchayat is for a limited period of 4-5 years. After holding the post and due to his performance for some time, the allegation of (21) W.P. No. 18135/2017 misconduct or undesirability to continue the office bearer on the post may have alleged, then on issuance of show cause notice, he has to face the enquiry. During enquiry, if the office bearer feels in his mind that the allegations are likely to be proved against him by delay in enquiry, the possibility to do more corruption cannot be ruled out as he has the fate determined. In case he feels that the allegations are frivolous and incorrect and due to delay in enquiry, he has to suffer mental agony and to face enquiry for the incorrect cause up to the inordinate period then the possibility to distort his mind cannot be ignored otherwise in a time frame if enquiry is completed, he may get justice early and can work with full of enthusiasm. In addition, on making the allegation of misconduct or undesirability to continue on the post by the elected office bearer, the functioning of Panchayat may be adversely affected for long time though in a democratic system the work of the Panchayat ought to be conducted by such elected office bearer, therefore, in the second proviso the word 'shall' used for passing a final order within ninety days is purported to have the importance couched to limit the time may be directory but on extension of the time in the later part of the proviso the words used that, "such extension shall not be more than thirty days" make it binding, therefore, the said proviso so far as fixing the time, is mandatory and it cannot be said directory.
(22)W.P. No. 18135/2017
22. Thus, replacing the time limit to pass order within ninety days as far as possible from the date of show cause notice vide amendment dated 30.8.2005 using the word 'shall' pass order within ninety days and limiting the extension of time using the words 'shall not be more than thirty days' made the proviso mandatory. Therefore, gathering the intention of the legislature and the language couched in the proviso is susceptible to the purpose by which the office bearer guilty of misconduct or his continuation to the office is not in public interest must be removed without inordinate delay. But simultaneously the enquiry on the frivolous and vexatious allegations should not be continued against elected office bearer in democratic system for the long time, however, the time limit prescribed to conclude the enquiry and to pass the order within such time is mandatory.
23. In view of the foregoing discussion and looking to the fact that the notice of removal of the Sarpanch was issued on 14.06.2016, the ninety days' period would elapse on 12.09.2016, however, on filing an application to drop such proceeding by the petitioner on 14.09.2016, the Sub-Divisional officer first of all fixed so many dates i.e. 14.09.2016, 30.09.2016, 14.10.2016, 08.11.2016, 29.11.2016, 27.12.2016, 17.01.2017, 07.02.2017, 20.02.2017, 06.03.2017, 27.03.2017, 04.04.2017, 12.04.2017, 24.04.2017, 06.05.2017, 22.05.2017 prior to 22.05.2017 on 17.05.2017 referring some letters of the Panchayat Department dated 03.05.2017 which is with (23) W.P. No. 18135/2017 respect to the decision on the complaint, the matter was referred to the Chief Executive Officer, Jila Panchayat who after fixing various dates i.e. 22.05.2017, 29.05.2017, 07.06.2017, 14.06.2017, 27.06.2017, 12.07.2017, 24.07.2017, 10.08.2017, 29.08.2017, 07.09.2017, 21.09.2017 and 12.10.2017 rejected the application of the petitioner to drop the proceeding.
24. As per discussion made hereinabove, it is apparent that second proviso to Section 40(1) of the Panchayat Act has prescribed the time limit to conclude the enquiry and to pass a final order is mandatory. In case from the date of issuance of show cause notice proceedings have not been culminated within the time limit prescribed by passing a final order then such proceedings for removal under Section 40 of the Panchayat Act shall stand dropped, therefore, the order passed by the Chief Executive Officer rejecting the application of the petitioner to drop the proceedings stand set aside.
25. In view of the foregoing discussion, the inescapable conclusion can be arrived at in the facts of the case is to quash the order dated 12.10.2017 passed by the Chief Executive Officer, Jila Panchayat, Mandala and to quash the proceedings of removal of the petitioner from the post of Sarpanch, Gram Panchayat, Amanala. It is made (24) W.P. No. 18135/2017 clear here that dropping of the proceedings due to delay would not debar the authorities to take recourse of law afresh.
26. Consequently, this petition succeeds and is hereby allowed. Order dated 12.10.2017 passed by respondent No.3 is hereby quashed. The proceeding initiated under Sub-Section (1) of Section 40 of the Panchayat Act is also quashed. In the facts and circumstances, parties are directed to bear there own costs.
(J.K.Maheshwari)
Judge
PB Digitally signed by
PRADYUMNA BARVE
Date: 2018.02.02
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