Chattisgarh High Court
Smt. Rani Bai vs State Of Chhattisgarh And Ors. on 1 May, 2002
Equivalent citations: 2002(3)MPHT10(CG)
ORDER Fakhruddin, J.
1. By this writ petition filed under Articles 226/227 of the Constitution of India, petitioner is challenging the order dated 18-1-2002 passed by respondent No. 2 whereby it has been directed to stay the order passed against respondent Nos. 4 and 5 from the post of Sarpanch, Lalpur Gram Panchayat till decisions of appeal preferred by respondent Nos. 4 and 5.
2. Briefly stated facts are that respondent No. 4 was an elected Sarpanch, Lalpur and on a complaint made by the present petitioner who is Up-Sarpanch of the said Gram Panchayat and others, respondent No. 3, the Sub-Divisional Officer, Lormi, Distt. Bilaspur started an enquiry against respondent Nos. 4 and 5 and in exercise of its powers vested under Section 40 of M.P. Panchayat Raj Adhiniyam, 1993 removed respondent Nos. 4 and 5 by passing an ex parte order dated 28-12-2001 (Annexure P-1). Against this order, respondent No. 4 preferred appeal and the Collector while admitting the appeal has rejected the application for staying the impugned order vide his order dated 2-1-2002 (Annexure P-2). Being aggrieved by the order dated 2-1-2002 passed by the Collector (Annexure P-2), respondent Nos. 4 and 5 filed revision and the Commissioner/respondent No. 2 by ex parte order dated 18-1-2002 (Annexure P-4) set aside the order passed by the Collector and stayed the effect and operation of the impugned order passed by the Appellate Authority (Annexure P- 2) and that of the Sub-Divisional Officer (Annexure P-1).
3. The present petitioner has filed this petition against the order dated 18-1-2002 (Annexure P-4) passed by the Commissioner claiming the following reliefs:--
"7.1. That this Hon'ble Court may kindly be pleased to call for the entire records of the case leading to the passing of the impugned order (Annexure P-4) dated 18-1-2002.
7.2. That this Hon'ble Court may kindly be pleased to issue a writ of certiorari quashing order (Annexure P-4) passed by the Commissioner, Bilaspur and declare the same as inoperative.
7.3. Issue any other writ, direction or order in favour of the petitioner which may be found appropriate under the facts and circumstances of the case."
4. This Court vide order dated 30-1-2001 directed issuance of notice and granted interim stay on 6-2-2002. Respondent Nos. 4 and 5 have filed reply thereto. Application (I.A. No. 84/2002) for vacating interim stay has been filed. Hearing on I.A. No. 84/2002 as well as the petition will take time; therefore, with the consent of the parties, the matter has been heard finally on different dates.
5. The matter regarding removal of Sarpanch/member or any office bearer of the Gram Panch is provided in Section 40 of the M.P. Panchayat Raj Adhiniyam, 1993. The same is relevant here and quoted below:--
"Section 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 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, sister-in-law, son-in-law or daughter-in-law :
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.
(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 under this Act."
6. On complaint made by the petitioner, enquiry was made by C.E.O., Janpad Panchayat, Lormi. On the basis of this report, show-cause notices were issued to the respondent Nos. 4 and 5. It is not disputed that in the show-cause notice, which is said to be received by respondents on 26-12-2001, the date of appearance was given to them as 28-12-2001. According to the order Annexure P-1 passed by the Sub-Divisional Officer, respondent Nos. 3 and 4 did not appear on 28-12-2001 and that day itself the Sub-Divisional Officer, herein respondent No. 3, proceeded ex parte and passed the order (Annexure P-1). Consequent to the said order, respondent Nos. 4 and 5 not only stand removed from their office, but they shall also stand disqualified for a period of six years as contemplated under Sub-section (2) of Section 40 of the Act, 1993. In this connection, it is apt to reproduce the relevant Paragraphs 2 and 3 of the order (Annexure P-1) passed by Sub-Divisional Officer, respondent No. 3 herein, which reads as under :--
^^¼2½ izkIr f'kdk;r tkap eq[; dk;Zikyu vf/kdkjh] tuin iapk;r] yksjeh }kjk djk;h x;h A muls izkIr izfrosnu ds vk/kkj ij ljiap ,oa lfpo dks dkj.k crkvks uksfVl tkjh fd;k x;k A ljiap ,oa lfpo dkj.k crkvks uksfVl izkIr djus ds ckn Hkh U;k;ky; esa vuqifLFkr jgs A vr,o muds fo:) Loi{kh;
dk;Zokgh tkjh j[kus dk vkns'k fn;k x;k A ¼3½ mijksä foospuk ls eSa bl fu"d"kZ ij igqaprk gwa fd vkjksih ljiap Jherh ikoZrh ckbZ ,oa Jh <kyflag iapk;r dehZ@lfpo nksuksa ds }kjk vkilh feyhHkxr ls iapk;r jkf'k dk xcu dj izHk{k.k fd;k x;k gS A vr,o eSa vuqfoHkkxh; vf/kdkjh yksjeh e-iz- iapk;r jkt vf/kfu;e] 1993 dh /kkjk 40 ds vUrxZr iznÙk 'kfä;ksa dk mi;ksx djrs gq, Jherh ikoZrh ckbZ dks ljiap] ykyiqj ¼Fkkuk½ ls rFkk Jh <kyfalag dks iapk;r dehZ ds in ls inP;qr djrk gwa A mijksäkuqlkj vkns'k ikfjr A** lgh@& vuqfoHkkxh; vf/kdkjh] yksjeh
7. Against the order (Annexure P-1), respondent Nos. 4 and 5 preferred appeal under the provisions of M.P. Panchayats (Appeal and Revision) Rules, 1995, and the appellate authority had admitted the appeal and noted the contention of respondents that the Sub-Divisional Officer has issued show-cause notice for appearance on 28-12-2001 and when they reached on 28-12-2001 at 2.00 p.m. they came to know that respondent No. 3 had proceeded ex parte and respondent Nos. 4 and 5 were not provided with opportunity of hearing or to submit reply thereto and the order of removal has been passed. They also prayed for stay of the order passed by Sub-Divisional Officer. Respondent Nos. 4 and 5 before the appellate authority contended that the allegations made in the show-cause notice are incorrect and they are not related with those allegations warranting removal from their offices. Learned Additional Collector had noted all those contentions, but after hearing Counsel for respondent Nos. 4 and 5 opined in the last paragraph of his order that in the arguments advanced by them, no specific fact and legal error have been pointed out justifying the grant of stay. Thus the learned Additional Collector while admitting the appeal has rejected the application for stay. Record was also called for and date was given 11-2-2002 for further hearing. Being aggrieved by the said order dated 2-1-2002 (Annexure P-2), respondent Nos. 4 and 5 preferred revision under the M.P. Panchayat (Appeal and Revision) Rules, 1995 and the Commissioner, Bilaspur Division, herein respondent No. 2, after hearing Counsel for the respondent Nos. 4 and 5 and noting that the Collector while admitting the appeal, rejected the application for grant of stay, had granted stay of the impugned order of the appellate authority and that of respondent No. 3 Sub-Divisional Officer and further directed that the order Annexure P-4 shall continue till disposal of the appeal and as the appeal is pending before the Collector, he closed the case and consigned the revisional record to the record room. Paragraph 2 of the order dated 18-1-2002 is relevant here and quoted below :--
^^iqujh{k.k vkosnu dk voyksdu djus ,oa LFkxu ds fcUnq ij vkosndx.k ds vf/koäk dks lquus ds ckn vfrfjä dysDVj] fcykliqj }kjk lquokbZ gsrq xzká vihy izdj.k esa fn;s x, LFkxu fujLrhdj.k vkns'k dks lekIr fd;k tkrk gS A U;k;ky; vij dysDVj] fcykliqj ds le{k vihy izdj.k ds fujkdj.k rd vuqfoHkkxh; vf/kdkjh fcykliqj ds vkns'k ds fØ;kUo;u ij jksd yxkbZ tkrh gS A izdj.k v/khuLFk U;k;ky; esa izpyu ;ksX; gksus ls lekIr fd;k tkrk gS A izdj.k ntZ gksus mijkUr nkf[ky fjdkMZ gks A lgh@&vLi"V vij vk;qä fcykliqj laHkkx
8. Learned Counsel for the petitioner who is the complainant himself and at. whose behest the proceedings were initiated, contends that the order of Commissioner/respondent No. 2, is illegal and contrary to law. He further contends that the learned Commissioner granted ex parte order staying the operation of impugned orders passed by the appellate authority and the Sub-Divisional Officer and directed that his order Annexure P-4 shall continue till decision of the appeal and closed the revision case and consigned the record to the record room. Learned Counsel for respondent Nos. 4 and 5, on the other hand, supported the order of Commissioner.
9. So far as the order of Additional Collector is concerned, Counsel for respondent Nos. 4 and 5 referred to provisions of Section 5 of the M.P. Panchayat (Appeal and Revision) Rules, 1995. In this regard, Section 5 of the Rules 1995 is relevant here which reads as under:--
"5. Revision.-- (1) (a) The State Government, the Commissioner, the Director of Panchayat, the Collector may on its/his own motion or on the application by any party, at any time for the purpose of satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceeding of, the authority subordinate to it/him call for and examine the record of any case pending before, or disposed of by, such authority and may pass such order in reference there to as it/he may think fit :
Provided that it/he shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard :
Provided further that no application for revision shall be entertained against an order appealable under the Act.
(b) An application for revision by any party shall only be entertained if it is on the point of law and not on facts.
(2) Notwithstanding anything contained in Sub-rule (1),--(i) Where proceedings in respect of any case have been commenced by the State Government under Sub-rule (1) no action shall be taken by other officer mentioned in the said sub-rule in respect thereof, and
(ii) Where proceedings in respect of any such case have been commenced by the Officer mentioned in Sub-rule (1), the State Government may either refrain from taking any action under this rule in respect of such case until the final disposal of such proceeding by such officer or may withdraw such proceeding and pass such order as it may deem fit."
A plain reading of Rule 5 shows that Clause (1) (a) of this rule stipulates that the revisional authority shall not vary or reverse any order unless notices have been served on the parties interested and opportunity given to them for being heard.
10. So far as the order of Commissioner (Annexure P-4) is concerned, it is manifestly clear that neither notice of this revision nor the application for stay were issued to the other side nor they were given any opportunity of hearing and the Additional Commissioner not only passed the order staying the order of Collector till decision of appeal, but closed the case and consigned the revisional record to the record room. This could not have been done in view of specific provision contained in the Rule. The powers conferred on appellate/revisional authority is to be exercised in the manner in which it is required to be exercised, especially when final order is being passed. It is open to the revisional authority to pass interim order after notice is served on the other side and opportunity given to them for being heard. In the present case, that having not been done, the order of Commissioner deserves to be set aside and is hereby set aside.
11. Counsel for the respondent Nos. 4 and 5 submits that the order passed by the Sub-Divisional Officer is a matter of appeal before the Additional Collector which itself is vitiated. Inasmuch as, by ex parte order respondent Nos. 4 and 5 have been removed illegally without affording any opportunity. It is pointed out that the order passed by respondent No. 3 (Annexure P-1) is also under challenge before this Court and one of the reliefs thereof is sought to quash Annexure P-1 in this writ petition. Though it is mentioned that the relief was granted by the Commissioner, but it is pointed out that the order (Annexure P-1) is the order passed by the Sub-Divisional Officer. It is contended by learned Counsel for respondent Nos. 4 and 5 that so far as the order of Sub-Divisional Officer is concerned, that has been passed in hot haste without affording any opportunity of hearing. It is submitted that Section 40 which has conferred power regarding removal of office bearers of Panchayat contemplates the enquiry to be made by the State Government or the prescribed authority. It is submitted that admittedly show- cause notice was given, but the date of appearance was given 28-12-2001 and on the said date itself, the Court proceeded ex parte and passed the order of removal. It is contended that the power of removal is, having regard to these consequences, quasi-judicial in nature and such functions are quasi-judicial functions. More so because, on such an order the person would not only get punishment of removal, but would face disqualification for a period of six years to be elected and the finding of misconduct on which such an order is based casts stigma on public life of the person. This power is, therefore conferred on the State Government or the prescribed authority and is to be exercised after such an enquiry as it deems fit on the grounds that (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. Certain proviso is added there to 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 to Section 40 defines misconduct by amending Act 43 of 1997 which has been made available w.e.f. 15-12-1997 from the State of Madhya Pradesh and which is also applicable to the State of Chhattisgarh unless otherwise changed. Further proviso to this section is that final order shall be passed as far as possible within 90 days from the date of issue of show-cause notice to the concerned office bearer.
12. The date of issue of show-cause notice has not been shown in the order, but nevertheless it is an admitted position that the date of appearance was given as 28-12-2001. In the opinion of this Court, where an authority has issued notice to show cause and given a specific date, then the reasonableness which required, in the facts and circumstances of the case where removal of Sarpanch with a further disqualification for six years, is to follow. This opportunity should be such that a person is able to defend and explain the said case. That authority has not to act arbitrarily. Reasonable opportunity is to be given. Here in the present case, the time given to appear and submit reply was up to 28-12-2001. In fact, the typed copy of the order was such that it may be " 26-12-2001, but as apparent from the order of Collector is 28-12-2001. Even if it is 28-12-2001, then the prudence requires that the order ought not to have been passed on that day itself especially, when by an Act of Amendment, period of 90 days is given from the date of issue of show-cause notice. The enquiry is to be completed as far as possible and the final order be passed within 90 days from the date of issue of issue of show-cause notice to the concerned office bearer. The period was still available. It is submitted by respondent Nos. 4 and 5 that they have received notice on 26-12-2001 for appearance on 28-12-2001. If the notice was received on 26-12-2001 and the date of appearance stated therein was 28-12-2001, the passing of the order on 28-12-2001 itself is not sustainable. M.P. Panchayats Act (7 of 1962) contains similar clause of Section 116 (2) regarding removal of an office bearer. The order of removal affects the valuable right of a person holding office as member or Sarpanch to continue in the office until expiry of the term and the finding of misconduct on which such an order is based casts stigma on the public life of a person as he is disqualified. In view of the consequences flowing from the record, the power of removal has been held to be quasi judicial in nature.
13. A Division Bench of High Court of M.P. in case of Bansamani Prasad Veerbhadra Shukla v. State of M.P. and Ors., reported in 1980 MPLJ 34, held as under:--
"It cannot be disputed that opportunity to show cause must be real opportunity. The person proceeded against must not only be told the allegations of misconduct, but he must also be informed of the material which is sought to be used against him in support of the charges so that he may offer his explanation in respect of that material. A person who holds office as a member or as President has a right to continue in the office until the expiry of the term. The order of removal, which is passed under Section 116, affects this valuable right and the finding of misconduct on which such an order is based casts a stigma on the public life of the person. Having regard to these consequences, we are of opinion that the power of removal is quasi-judicial in nature. In Bhagat Ram v. State of Punjab, AIR 1972 SC 1571, a provision in the Punjab Municipal Act relating to the removal of members was considered by the Supreme Court. It was held in that case that the order contemplated by the provision removing a member was quasi-judicial in nature and that it was not only desirable but also essential that the authority passing the order should give reasons. It was further pointed out that all the material should be disclosed to the person concerned so that he may give an effective answer not only to the averments contained in the show-cause notice, but also to the principles laid down in Bhagat Ram v. State of Punjab (supra)."
14. In view of the above decision, learned Counsel for respondent Nos. 4 and 5 submits that the Sub-Divisional Officer ought not to have passed an order on the very same day and there is a provision which in fact requires an opportunity and the order passed by respondent No. 3 is illegal and contrary to law.
15. Learned Counsel for respondent Nos. 4 and 5 further submits that the order passed by the respondent No. 3 is illegal and contrary to law as opportunity of hearing is not given to them. Reliance has been placed in this connection on a decision of the High Court of M.P. in case of Nirmal Singh Saha v. State of M.P., reported in 1999(2) MPWN SN 201, wherein it has been held that the order of removal from the post of Sarpanch without hearing is not sustainable. Further reliance has been placed in the case of Kailash Kumar Dangi v. State of M.P. and Ors., reported in 2000(1) M.P.H.T. 143, wherein it has been held that "inquiry provided in Section 40 of the M.P. Panchayat Raj Adhiniyam, 1993 for removal of an office bearer has to be an inquiry to be held in conformity with the principles of natural justice".
It is pertinent to note that the High Court of Madhya Pradesh while interpreting the provisions regarding Primary Co-operative Stores Ltd., Satna v. State of M.P. and Ors., reported in 1985 RN 269, held as under :--
"The question in the case was the opportunity afforded would be the 'reasonable opportunity' within the meaning of the terms under Section 53 (2) of M.P. Co-operative Societies Act, 1960 ? These two words are said to be incorporating principles of natural justice. Principles of natural justice are not contained in any straight-jacket formula and have been interpreted differently in the context of different facts and circumstances. It however appears to be clear that whenever an action involving civil consequences is required to be taken against a person, he must be given a reasonable opportunity of showing cause against the action. This opportunity may include informing him of the material which is to be used against him.
Unless the opportunity as aforesaid has been given, it will be difficult to hold that the person affected by the order had a reasonable opportunity of showing cause against the proposed action."
16. It is manifestly clear that the Sub-Divisional Officer issued notice for appearance on 28-12-2001 and the show-cause notice was said to be received on 26-12-2001 and when they appeared on 28-12-2001, they came to know that on the same day, respondent No. 3 proceeded ex parte and order has been passed. Such an order on that day itself could not be passed mechanically in hot haste. The prudence requires that full time upto 5 p.m. be given and if the hearing is not completed by 5 p.m. then it may be taken up on the next day. It is to be in accordance with the provisions and to that effect, the Division Bench of High Court of M.P. expressed the consistent view that such orders are quasi-judicial orders. While considering the case of removal of an office bearer, the Supreme Court in Bhagat Ram v. State of Punjab (supra), which is similar to the present case, held that the order contemplated by the provision removing a member was quasi-judicial in nature and that was not only desirable, but also essential that the authority passing the order should give reasons. It was further pointed out that all the material should be disclosed to the person concerned so that he may give an effective answer not only to the averments contained in the show-cause notice, but also to the materials on the basis of which show-cause notice was issued. In view of the position of law declared by Hon'ble the Supreme Court in the case of Bhagatram v. State of Punjab (supra), the said principles have been held applicable by the Division Bench of M.P. High Court in case of Bandsman Prasad Veerbhadra Shukla v. State of M.P. (supra) under Section 116 of M.P. Panchayats Act, 1962.
17. Shri Gautam Bhaduri, Counsel for the State has also equally submitted that it is just and proper that the order passed by Sub-Divisional Officer herein respondent No. 3 is set aside, as the same is not sustainable in accordance with law.
18. Counsel for the petitioner/complainant, in view of the facts and circumstances and the legal position which have emerged, fairly submitted that the implications arising out of Section 40 is such that requirement of hearing is contemplated and the proceedings are quasi-judicial in nature, as such he has prayed that the order of Sub-Divisional Officer may be set aside.
19. Counsel for respondent Nos. 4 and 5, so also the petitioner and the State submitted that in view of the special facts and circumstances which have emerged from record, it is manifestly clear that the Sub-Divisional Officer passed the order on 28-12-2001 itself and in view of the decisions of the High Court of Madhya Pradesh rendered in cases of Bansamani Prasad Veerbhadra Shukla v. State of M.P. (supra); Nirmal Singh Sahu v. State of M.P. (supra); Kailash Kumar Dangi v. State of M.P. and Ors. (supra); Primary Co-operative Stores Ltd., Satna v. State of M.P. and Ors. (supra), the order of Sub-Divisional Officer deserves to be set aside, as the opportunity of hearing has not been given.
20. This Court is of the considered opinion that under the facts and circumstances of the present case it is writ large and could not be disputed that opportunity has not at all been afforded by Sub-Divisional Officer and non-compliance of Section 40 of M.P. Panchayat Raj Adhiniyam is there. The authority has acted in most arbitrarily and disregard to the principle of natural justice. Normally this Court would not have interfered in the impugned order of Sub-Divisional Officer, but in view of the facts which have emerged, violation of statute and principle of natural justice are apparent on the face of the record and prayer has also been made by Counsel for the parties including respondent Nos. 4 and 5 that the matter be remitted to the Sub-Divisional Officer, in the opinion of this Court, this Court has jurisdiction to grant relief under Article 226 of the Constitution of India in appropriate case. The existence of alternative remedy is not an absolute bar to the relief. It is one of the circumstances which the Court has to take into consideration while exercising its discretionary power under Article 226. Alternative remedy does not take away the jurisdiction of the Court to grant relief in exceptional circumstances. Consequently, the order passed by the Commissioner dated 18-1-2002 (Annexure P-4) in favour of respondent Nos. 4 and 5 is set aside, so also the order passed by the Collector (Annexure P-2) and that of Sub-Divisional Officer (Annexure P-1) are set aside. The matter is remitted to the competent authority i.e., the Sub-Divisional Officer to decide in accordance with law as early as possible preferably within 2 months from the dale of their appearance. Counsel for the petitioner so also respondent Nos. 4 and 5 submit that a fixed date may be granted for their appearance before respondent No. 3. Accordingly, the petitioner as also respondent Nos. 4 and 5 are directed to appear before the Sub-Divisional Officer, respondent No. 3 herein on 10th June. The reply to the show-cause notice which has already been issued to respondent Nos. 4 and 5 be filed within 10 days from the date of their appearance. Thereafter the Sub-Divisional Officer shall consider the case of respondent Nos. 4 and 5 in accordance with law and pass orders within 2 months from the date of appearance i.e., 10-6-2002.
21. Counsel for the parties submit that powers have been conferred on the State authorities under the M.P. Panchayats (Appeal and Revision) Rules, 1995 to decide the matters like present, but the manner in which they are exercised as reflected from the orders passed by the Sub-Divisional Officer, Additional Collector and the Commissioner goes to show that proper training is required to be imparted to these authorities to perform such quasi-judicial functions in accordance with law. The order passed by the Sub-Divisional Officer under the provisions of Section 40 of M.P. Panchayat Raj Adhiniyam, 1993, not only lakes away the valuable right of a person holding such office, but casts a stigma on the public life of a person. Therefore, exercise of such power by these authorities in hearing the matters of appeal and revision requires proper understanding of law keeping in mind principle of natural justice. Such training is required because State has local body establishments of Panchayats, Municipal Corporation, Municipal Council and so on and so forth and the disputes like present may often arise and travel to such authorities. Therefore, by imparting such legal education, the authorities can justifiably perform the quasi-judicial functions in accordance with law so that no prejudice would cause to any body in a democratic set up. It must be observed that as the public interest is involved in the matter, the financial constraints should not come in the way in giving such training.
22. In view of what has been stated above, the petition is disposed of with the observations/directions aforesaid.
23. A copy of this order be sent to the Principal Secretary, General Administration Department and Chief Secretary to the State Government.
A certified copy of this order be also supplied to all the parties concerned.