Calcutta High Court (Appellete Side)
Chenbanu Bibi vs State Of West Bengal And Others on 1 February, 2011
Author: Patherya
Bench: Patherya
07 01.02. W.P. 16522 (W) of 2010
md. 2011
Chenbanu Bibi
-Vs-
State of West Bengal and Others
Mr. L.C. Bihani
Mr. Asique Rosul
Mr. Bikranta Nanda
... for the petitioner
Mr. Manik Ch. Das
Mr. Subrata Banerjee
... for the State
Mr. K.J. Tewari
Mr. Sarwar Jahan
... for the respondent Nos. 5 to 14 and
16 to 21 Mr. Avishek Sinha ... for the respondent Nos. 15, 22 and 23 By this writ petition, the petitioner has sought to challenge the order passed by the District Magistrate on 26th May, 2010.
The case of the petitioner is that a complaint was lodged against her by the private respondent along with 19 other persons for misuse and mis- appropriation of funds received under the MGNREGA Scheme. Pursuant thereto, an enquiry was held and on the basis of such enquiry an explanation was sought from the petitioner. An explanation was given and without hearing the 2 petitioner or considering the representation an order was passed on 26th May, 2010. The National Rural Employment Guarantee Scheme, West Bengal, Grievance Redressal Rules, 2009 postulates that a complaint must be in writing, signed with complete identity of the complainant. In the instant case, the complaint lodged is not in accordance with the said Rules as the identity of each complainant has not been disclosed. Three out of the 20 complainants have submitted to Court that their signatures are forged. Therefore, the complaint was no complaint in the eye of law. Rule 4 (3) of the Rules postulates that in cases where corruption, forgery and financial irregularities is alleged necessary enquiry and inspection be made. The term 'enquiry' postulates an opportunity of hearing which has not been given in the instant case. Therefore, the enquiry report on the basis of which an explanation has been sought is ex parte and therefore renders the notice calling for an explanation bad. In fact, prior to passing the order dated 26th May, 2010 also no opportunity of hearing was given to the parties. Therefore, the order is in violation of the principles of natural justice and liable to be set aside.
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Reliance has been placed on 1986 (4) S.C.C. 537, AIR 1975 S.C. 596, AIR 1991 S.C. 117, AIR 1990 S.C. 1480 and 2003 (4) S.C.C. 557 for the proposition that even where the statute is silent with regard to an opportunity of hearing being given, the principles of natural justice will warrant a hearing. As in the instant case, no hearing has been given, the order dated 26th May, 2010 be set aside.
Counsel for the private respondent submits that the principles of natural justice cannot be stretched to a situation where such principle will be a useless formality theory as held in 2003 (4) SCC
557. Reliance is also placed on 2006 (8) SCC 647 for the proposition that where facts are admitted a hearing will be an empty formality. 2006 (3) SCC 276 has also been relied on for the proposition that in cases where doctrine of necessity is applicable, compliance of the principles of natural justice, be excluded. Pursuant to order dated 26th May, 2010 an FIR had been lodged and proceedings initiated. Therefore, no order be passed as by virtue of the order sought the petitioner seeks stay of the criminal proceedings.
Having considered the submissions of the 4 parties, 2009 Rules postulates lodging of a complaint with complete identity of the complainant. In the instant case, no defect can be found in the complaint lodged. Even if three persons have questioned their signatures the balance 16 are entitled to maintain the complaint filed. Rule 4(3) of the 2009 Rules contemplates enquiry in cases of corruption and financial irregularities. After the complaint was lodged, an enquiry was directed. From the instructions filed in Court by the State-respondents it appears that the Block Development Officer, Sagar Dighi was to conduct the enquiry. The Block Development Officer called upon the Assistant Programme Officer, Sagar Diighi to submit an enquiry report. Such report has also been handed to Court. Therefrom it appears that measurements were taken in the presence of villagers and the Upa- Pradhan. Therefore, the Gram Panchayat was represented. It is on the basis of the enquiry made by the Assistant Programme Officer that the letter dated 3rd May, 2010 was issued whereby the petitioner was called upon to give an explanation. Such explanation was given and the same was considered prior to passing the order dated 26th 5 May, 2010. Consideration of the petitioner's reply will satisfy the principles of natural justice. It is not personal hearing which is necessary to be given as is sought to be contended by the petitioner. Consideration of the representation also will satisfy the principles of natural justice as mentioned above. In the order dated 26th May, 2010 it has been stated that all records and the findings of the District Nodal Officer were considered before disposing of the complaint. Therefore, it goes without saying that the explanation given by the petitioner was also considered. In the explanation given by the petitioner she dealt with the allegations made against her. In the event a personal hearing was given, she could not have improved upon her case made out in the explanation. Therefore, a personal hearing would have been nothing but a mere empty formality. In fact pursuant to the First Information Report lodged the petitioner will get an opportunity to defend herself as no order of conviction can be passed against her without following the procedures of law laid down in the Code of Criminal Procedure. Therefore, the petitioner will get an opportunity to place her case and exonerate herself from the charges that may be 6 levelled against her.
In view of the aforesaid, no order is passed on this application and the application is accordingly dismissed.
Instructions filed by the State-respondents be kept on record.
Urgent certified photocopies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.
(Patherya, J.) 7