Chattisgarh High Court
Janki Bai vs State Of Chhattisgarh on 21 March, 2022
Author: Rajendra Chandra Singh Samant
Bench: Rajendra Chandra Singh Samant
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 5041 of 2021
• Janki Bai W/o Shri Gyandas Banjare, Aged About 52 Years, R/o Village
Khamhariya, Tahsil Mungeli, District Mungeli, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh through its Secretary, Department of Panchayat &
Rural Development, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, P.O.-
Rakhi, Distrct- Raipur, Chhattisgarh
2. The Collector District- Mungeli, Chhattisgarh
3. Sub Divisional Officer (R), Mungeli, District Mungeli, Chhattisgarh
4. Nayab Tahsildar Mungeli, District Mungeli, Chhattisgarh
5. Gram Panchayat Khamhariya through its Secretary, Gram Panchayat
Khamhariya, Tahsil Mungeli, District Mungeli, Chhattisgarh
6. Mahendra Dhruv, working as Upsarpanch, Gram Panchayat
Khamhariya, Tahsil & District Mungeli, Chhattisgarh
7. Suresh Ratrey, working as Panch, Gram Panchayat Khamhariya, Tahsil
& District Mungeli, Chhattisgarh
8. Ram Jhol Dhruv, working as Panch, Gram Panchayat Khamhariya,
Tahsil & District Mungeli, Chhattisgarh
9. Kamlesh Jatwar, working as Panch, Gram Panchayat Khamhariya,
Tahsil & District Mungeli, Chhattisgarh
10. Sunita Dhruv, working as Panch, Gram Panchayat Khamhariya, Tahsil &
District Mungeli, Chhattisgarh
11. Bisahin, working as Panch, Gram Panchayat Khamhariya, Tahsil &
District Mungeli, Chhattisgarh
12. Sarita Patre, working as Panch, Gram Panchayat Khamhariya, Tahsil &
District Mungeli, Chhattisgarh
13. Santosh Jatwar, working as Panch, Gram Panchayat Khamhariya, Tahsil
& District Mungeli, Chhattisgarh
---- Respondents
For Petitioner - Shri Anish Tiwari, Advocate.
For State/Respondents No.1 to 4 - Shri Ashish Tiwari, Govt. Advocate. For Respondents No.5, 6, 8, 9, 10, 11 and 12 - Shri Rajeev Kumar Dubey, Advocate.
Hon'ble Shri Justice Rajendra Chandra Singh Samant Order on Board 21-03-2022
1. This petition has been brought praying for issuance of appropriate writ and also for quashing the impugned order dated 16-11-2021 (Annexure-P/1).
2. It is submitted that the petitioner was elected as Sarpanch of Gram -2- Panchayat Khamhariya, District Mungeli, Chhattisgarh. A complaint was made by respondents No.6 to 13 against the petitioner before respondent No.3 making allegations of financial irregularities. The copy of the complaint was not supplied to the petitioner, however, the case was registered. Without holding any preliminary inquiry respondent No.3 issued a show cause notice (Annexure-P/4) under Section 40 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (in short 'the Adhiniyam, 1993') to the petitioner. The petitioner submitted reply vide Annexure-P/5. Respondent No.3 then directed the CEO, Janpad Panchayat Mungeli for submitting a report, but the same was not complied. Thereafter, a committee was constituted for inquiry. The committee headed by respondent No.4 submitted a report.
It is submitted by learned counsel for the petitioner, that report (Annexure-P/8) was a preliminary inquiry report. On submission of this report respondent No.3 directly passed the impugned order dated 16-11-2021 without holding any inquiry and without giving proper opportunity of hearing. By the impugned order the petitioner has been removed from her post under the provision of Section 40 of the Panchayat Raj Adhiniyam and she has also been disqualified to participate in further elections for a period of six years. It is submitted that it is a case of clear violation of principles of natural justice. The petitioner was never served with copy of the inquiry report and neither she was given any opportunity of hearing as provided under Section 40 of the Adhiniyam, 1993.
Reliance has been placed on the order of this Court passed in WPC No.2675/2017 between Smt. Kamti Bai Vs. State of Chhattisgarh and others decided on 11-12-2017 and the judgment of M.P. High Court in the case of Kailash Kumar Parmanand Dangi Vs. State of M.P. and others, 1999 (2) M.P.L.J. 722. It is submitted that although the impugned order is appellable, but present case is an exception, as it is a case of violation of principles of natural -3- justice, regarding which reliance has been placed on the judgment of Hon'ble the Supreme Court in the case of Harbanslal Sahnia and another Vs. Indian Oil Corpn. Ltd. and others, (2003) SCC 107 and on the judgment of Hon'ble the Supreme Court in the matter of Magadh Sagar & Energy Ltd. Vs. State of Bihar and others, 2021 SCC OnLine SC 801. Hence, this petition is maintainable without pursuing the alternative remedy as provided under the Adhiniyam, 1993. Therefore, it is prayed that the petitioner may be granted relief.
3. The State counsel representing respondents No.1, 2, 3 and 4 opposes the submission and raises ground on the maintainability of the petition. It is submitted that there is alternative remedy available to the petitioner under the provisions of the Chhattisgarh Panchayat (Appeal and Revision) Rules, 1995. Hence, for this reason the present petition is not maintainable, which may be dismissed and disposed off.
4. Learned counsel for respondents No.5, 6, 8, 9, 10, 11 and 12 opposes the submission and submits that the petitioner has not filed the copy of all the order sheets. The order sheets that are filed clearly mention that the petitioner has chosen to remain absent on the dates of hearing, therefore, now she cannot make claim that she was not afforded opportunity of hearing. On the basis of illegal activities of the petitioner one FIR has also been lodged against her. There is no case of violation of principles of natural justice. Therefore, the petition may be dismissed.
5. Considered on the submissions. On making scrutiny of the proceeding initiated, it is found that on 25-08-2021 a complaint was received by respondent No.3 on the basis of which the proceeding was initiated under Section 40 of the Adhiniyam, 1993. By the order passed on this date notice was issued to the petitioner under Section 40 of the Adhiniyam, 1993. The petitioner gave appearance and submitted her reply. On subsequent dates, 29- -4- 09-2021, 22-10-2021 and 28-10-2021 the petitioner remained absent before respondent No.3. Respondent No.3 called for a report from the CEO, Janpad Panchayat and after filing of the report the impugned order was passed on 16- 11-2021.
The petitioner may have chosen to remain absent in the proceeding before respondent No.3, but filing of report by the CEO, Janpad Panchayat Mungeli was a new development in this case, regarding which the petitioner was required to be notified. There is mention in the impugned order that the petitioner has not submitted any reply regarding the findings of the inquiry report, but there is no mention that copy of the inquiry report was served upon the petitioner and her reply was sought.
Compliance of principle of natural justice is a serious business which cannot be done away with. This Court has in the case of Smt. Kamti Bai Vs. State of Chhattisgarh and others (supra) observed in paragraph No.15 of the said order that:-
"15. Reverting back to the facts of the case in hand, it is quite apparent that upon receipt of preliminary enquiry report which the Sub Divisional Officer (Revenue) got conducted beyond the back of the petitioner and which was submitted on 16-6-2016, the show cause notice was issued to the petitioner and after getting reply from the petitioner, straightway, the order of removal was passed. In fact, this is a case where no enquiry was done and mainly relying upon the report of ex parte preliminary enquiry, the Sub Divisional Officer (Revenue) has removed the petitioner from the post of Sarpanch. In order to establish the charge alleged against the petitioner, the Sub Divisional Officer (Reveue) has examined none and thus, no opportunity of hearing much less reasonable opportunity of hearing was granted to the petitioner to refute the said charges. Thus, the order of removal has been passed -5- without following the mandate of Section 40(1) of the Act of 1993 and therefore it suffers from illegality as well as the principles of natural have been followed in its full breach and such illegality and non-compliance of audi alteram partem remain unnoticed by the learned Collector and the learned Commissioner as well."
6. On the basis of the facts as present and mentioned hereinabove, it is a clear case of violation of principles of natural justice by respondent No.3. Hence, the present case has to be deemed as a case of exception to the rule of alternative remedy as held by Hon'ble the Supreme Court in the case of Harbanslal Sahnia and another Vs. Indian Oil Corpn. Ltd. and others (supra) and also in the case of Magadh Sagar & Energy Ltd. Vs. State of Bihar and others (supra). Therefore, I am of this view that the impugned order is not sustainable. Accordingly, this petition is allowed and the impugned order passed by respondent No.3 is quashed. Respondent No.3 shall be however at liberty to proceed against the petitioner in accordance with law and by following the principles of natural justice on the basis of complaint present against the petitioner. With these observations the petition is disposed off.
Sd/-
(Rajendra Chandra Singh Samant) Judge Aadil