Madhya Pradesh High Court
Anand Mohe vs The State Of Madhya Pradesh on 9 February, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 09th OF FEBRUARY, 2023
W.P. NO.8208 OF 2017
Between:-
ANAND MOHE, SON OF LATE NAGYA MOGHE,
AGED ABOUT 45 YEARS, OCCUPATION -
EX-CHAIRMAN, KRISHI UPAJ MANDI SAMITI, KHANDWA,
R/O HOUSE NO.149, PARNAM CITY,
SIHARA ROAD, BEHIND I.T.I., COLLEGE,
KHANDWA (M.P.)
.....PETITIONER
(BY SHRI BHAGWAN SINGH THAKUR, ADVOCATE)
AND
01. THE STATE OF M.P.,
THROUGH PRINCIPAL SECRETARY,
DEPARTMENT OF AGRICULTURAL AND MARKETING
BOARD, VALLABH BHAWAN, BHOPAL;
02. M.P. STATE MARKETING BOARD, THROUGH
ITS MANAGING DIRECTOR,
26, ARERA HILLS, JAIL ROAD,
KISAN BHAWAN, BHOPAL (M.P.);
03. THE SECRETARY,
KRISHI UPAJ MANDI SAMITI, KHANDWA,
DISTRICT KHANDWA (M.P.)
.....RESPONDENTS
(BY SHRI ARNAV TIWARI - PANEL LAWYER FOR RESPONDENT/STATE)
(BY SHRI SAMDARSHI TIWARI - ADVOCATE FOR RESPONDENT NO.2.)
(BY SHRI S.P. MISHRA WITH SHRI FALGUN YADAV - ADVOCATES ON
CAVEAT)
2
W.P. NO.8209 OF 2017
Between:-
ANOKHI LAL SAWNER, SON OF LATE MEHTAB SINGH,
AGED ABOUT 62 YEARS, OCCUPATION -
SUPERINTENDENT (RETD), KRISHI UPAJ MANDI SAMITI, KHANDWA,
.....PETITIONER
(BY SHRI BHAGWAN SINGH THAKUR, ADVOCATE)
AND
01. THE STATE OF M.P.,
THROUGH PRINCIPAL SECRETARY,
DEPARTMENT OF AGRICULTURAL AND MARKETING
BOARD, VALLABH BHAWAN, BHOPAL;
02. DEPARTMENT OF AGRICULTUR, MARKETING BOARD,
26, ARERA HILLS, JAIL ROAD,
KISAN BHAWAN, BHOPAL (M.P.);
03. KRISHI UPAJ MANDI SAMITI, KHANDWA,
THROUGH THE CHARIMAN,
DISTRICT KHANDWA (MP)
04. THE SECRETARY,
KRISHI UPAJ MANDI SAMITI, KHANDWA,
DISTRICT KHANDWA (M.P.)
.....RESPONDENTS
(BY SHRI ARNAV TIWARI - PANEL LAWYER FOR RESPONDENT/STATE)
(BY SHRI SAMDARSHI TIWARI - ADVOCATE FOR RESPONDENT NO.4.)
These petitions coming on for admission on this day, the Court
passed the following:
ORDER
3 Regard being had to the commonality of controversy, both the writ petitions are heard together and the same are being disposed of by a common order. For the sake of convenience, the facts of W.P. No.8208/2017 are being taken note of.
2. Petitioner has filed this writ petition, while praying for the following reliefs :
"(i) To issue a writ in the nature of mandamus command the respondents to produce entire records relating to passing of the impugned order removing the petitioner from the Office of Chairman and disqualifying the petitioner for six years, for reference and perusal,
(ii) To issue a writ in the nature of certiorari for quashment of the impugned order dated 26-5-2017 (Ann.P-1).
(iii) To issue a writ in the nature of certiorari to quash the show cause notice dated 20-10-2016 (Ann.P-5).
(iv) To grant any other relief, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case including cost of the litigation in favour of the petitioner."
3. The facts elaborated in the writ petition reflect that, the petitioner herein, was elected as Chairman, Krishi Upaj Mandi Samiti, Khandwa (hereinafter referred to as "Samiti"). The State Government has provided facility of a government vehicle, bearing registration No.MP-12- DA-0108. The said vehicle was used by the Executive Officers of the Samiti 4 and the expenses which were being incurred towards maintenance of the vehicle, were being paid from the fund of the Samiti.
4. There is a Circular of the State Government, dated 31-8-2007 which provides that there is ceiling limit of 65 liters of diesel per month which is admissible to ply the vehicle. Earlier as well, an order dated 7-10- 2008 was passed by the then Secretary of the Samiti, and the petitioner was held liable and recovery was ordered against him. Later on, the petitioner was served with a notice to show cause, dated 20-10-2016 (Annexure-P/5), in which allegations were levelled against the petitioner that, in the capacity of Chairman of the Samiti, the petitioner unauthorizedly used the aforesaid vehicle and 3184.05 liters of diesel and 9 liters of oil was used, and accordingly, the same incurred expenses of Rs.166850.09/-, thereby loss was caused to the Samiti.
5. Thus, the petitioner was called upon to show cause, as to why he be not removed from the post of Chairman in terms of Section 55(1) & (2) of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 [for brevity "Ahiniyam"] and also the said amount be not recovered in terms of Section 58 of the Adhiniyam.
6. On receipt of the said show cause notice, the petitioner initially demanded certain documents, vide his communication dated 05-11-2016 5 (Annexure-P/6) and later, the petitioner filed his reply to show cause which is contained in Annexure-P/7. Without considering reply of the petitioner, the impugned order dated 26-5-2017, contained in Annexure-P/1, was passed, whereby the petitioner was removed from the post of Chairman of the Samiti and order of recovery of Rs.166850/- was also passed against the petitioner, which was to be recovered in 10 equal instalments along with interest.
7. It is further stated in the petition that, later on petitioner came to know about the preliminary enquiry, which was conducted behind back of the petitioner, and even in the said enquiry nothing incriminating was found against the petitioner. The said enquiry report is contained in Annexure-P/8. Thus, assailing the impugned order dated 26-5-2017, this petition is filed.
8. Learned counsel for petitioner contends that in the present case, opening paragraph of the impugned order reflects, that on the basis of a newspaper publication, an enquiry was conducted and in terms of the enquiry report, dated 24-6-2015, and supplementary report dated 03-8-2016, a show cause notice was issued to the present petitioner. Learned counsel for petitioner submits that the said enquiry report which has been brought on record as Annexure-P/8 with the petition and also filed by the respondents as 6 Annexure-R/6 with the return, would reveal that the enquiry does not even refer the name of the petitioner.
9. While taking this Court to page No.33 of the return filed by respondents, learned counsel for petitioner submits that a perusal of page No.33 of the return reflects that, in the enquiry, neither any allegations were levelled against the petitioner nor even his name was mentioned therein. Thus, submits that the order impugned has been passed on some other grounds, inasmuch as, the eqnuiry does not implicate the present petitioner, so far as allegations in dispute, are concerned.
10. It is also contended by learned counsel for petitioner that it is the Secretary, who is duty-bound to maintain the vehicle, and in the present case, the petitioner was made a scapegoat unnecessarily. It is contended by the learned counsel for petitioner that the respondents themselves have placed on record Annexure-R/2, i.e. Circular dated 14-5-1980, which stipulates that it is the duty of the Secretary of the Samiti, to ensure control and plying of the vehicle. Whereas, in the present case, the petitioner, who was the Chairman of the Samiti, has been inflicted with an order, which on the face of it, causes stigma and having been passed without conducting an enquiry, hence deserves to be set aside.
7
11. It is also contended by the learned counsel for petitioner that the authority in the second last paragraph of the order concluded, that without maintaining a logbook the vehicle was used by the present petitioner and tours were made by him, which falls within the ambit of irregularities, as the Samiti sustained huge financial loss. The second last paragraph of the order is not supported by any enquiry report. It is contended by the petitioner that if enquiry report is taken into consideration on its face-value, the same does not reflect any overtact on the part of the petitioner, inasmuch as so far as the allegation regarding use or misuse of the diesel is concerned, petitioner's name was not there, even in the enquiry report, which is evident from page No.33 of the return.
12. Per contra, learned counsel for respondents submits, that in terms of Section 55 of the Adhiniyam, there is no requirement of conduct of an enquiry and a reasonable opportunity of hearing is required to be afforded to the person concerned, before initiating action under Section 55 of the Adhiniyam.
13. It is further contended by learned counsel for respondents, that a reasonable opportunity of hearing was afforded to the present petitioner before passing the impugned order. The petitioner was issued a notice to show cause and the said show cause notice was duly replied by the petitioner 8 an the eply of the petitioner was taken into consideration. It is also evident from perusal of Annexure-R/2, that the authority exhaustively dealt with the stand of the petitioner, which ultimately passed the impugned order, contained in Annexure-P/1.
14. It is further contended by the learned counsel, that the petitioner being the Chairman of the Samiti, could not have escaped from the liability, inasmuch as it is the petitioner, who unauthorizedly utilised the diesel in contravention of the relevant Circular and impugned action was initiated by respondents, which does not require any interference under writ jurisdiction.
To buttress his submission, learned counsel for respondents has placed reliance on the decisions rendered in the cases of Bjharilal Tikaram vs. Government of Madhya Pradesh, (1983) MPLJ 553 and Someshwar Patel vs. State of M.P. and another (W.A. No.496/2017, dtd.11-10-2017).
15. Heard rival submissions and perused the records.
16. Undisputedly, the petitioner herein was issued a show cause notice dated 20-10-2016. A perusal of of the show cause notice, dated 20- 10-2016 reflects that on the basis of a newspaper publication. an enquiry was conducted and in terms of the enquiry report, dated 24-6-2015, the petitioner was found guilty of irregularities. Accordingly, the said show cause notice was issued to the petitioner. The said enquiry report has been brought on 9 record by the petitioner as Annexure-P/6 and also by respondents in their return as Annexure-R/6.
17. The allegations which pertain to the petitioner, ultimately ensued in passing of the impugned order, are contained in page No.33 of the return, which being relevant, are reproduced hereunder :
dz- laf{kIr esa tkap djus ij ikbZ xbZ tkap lR;@vlR; ik;s tkus f'kdk;r izekf.kr vFkok f'kdk;r oLrqfLFkfr dk vk/kkj vizekf.kr ds laca/k esa dk vk'k; Li"V vfHker 1 2 3 4 5 d`f"k mit okguksa ds Mhty fcyksa ds d`f"k mit eaMh lfefr f'kdk;r vkaf'kd :i ls eaMh ds vfu;fer Hkqxrku ds laca/k [k.Mok dh okgu thi ,e- izekf.kr gS] D;ksafd okguksa esa esa tkap esa oLrqfLFkfr ih-Mh-,- Mh&108 dh ykWx ifjogu foHkkx Mhty ds fUkEukuqlkj ikbZA cqd ds voyksdu ij o"kZokj dzekad fcyksa dk d`f"k mit eaMh lfefr fdyksehVj ,oa Mhty [kir ,Q&22&1@2000@vkB vfu;fer [k.Mok esa okgu thi ls Li"V gS fd okgu dh fnukad 13-01-2000 } HkqxrkuA egsUnzk cksysjks o"kZ 2006 esa mi;ksx vfu;fer gksdj kjk ,oa ofj"Bky; ds i= dz; dj lfpo eaMh ds Mhty ij O;; vf/kd fd;k dzekad vf/kiR; esa gksdj okgu x;k gSA ch&3@4@3@2&5@298 dk mi;ksx rRdkyhu 1- o"kZ 2010&11] ekbZyksehVj 7 fnukad 29-7-2004 }kjk e.Mh v/;{k Jh madkj 23647@67201 fd-eh- 43554] fu/kkZfjr lhek ls vf/kd iVsy }kjk 15-07-2009 ls Mhty [kir 5355 yhVjA Mhty ek=k ij O;; 22-07-2011 rd fd;k x;k layXu izn'kZ&12 gksuk ik;k x;k gSA tks la/kkfjr ykWx cqd ls 2- o"kZ 2011&12] ekbZyksehVj Li"V gS o"kZ 2010&11 ls 67201@99194 fd-eh- 38504] 2013&14 rd ctV Mhty [kir 4014 yhVjA Lohd`fr ls okLrfod O;; layXu izn'kZ&13 ds laca/k esa Jh vuks[khyky 3- o"kZ 2012&13] ekbZyksehVj lkousj izHkkjh 99134@130715] fd-eh-
ys[kkiky@orZeku esa vHkh 31581] Mhty [kir 3188] rd }kjk vius vfHkdFku yhVjA layXu izn'kZ&14 esa voxr djk;k gS] vf/kd 4- o"kZ 2013&14 ¼flrEcj O;; ugha gqvk gSA 2013 rd½ ekbZyksehVj LVksj 'kk[kk izHkkjh Jh 130715@150752] fd-eh- fclsu }kjk vius c;ku esa 20037] Mhty [kir 2016 voxr djk;k gS fd okgu yhVjA layXu izn'kZ&15 ykWx esa mi;ksx fd;s x;s cqd ds ijh{k.k esa ;g Li"V Mhty ds fcy dk;kZy;hu ugha gks jgk gS fd LFkkuh; vkod&tkod 'kk[kk ls ;k=k] eaMh {kss= dh ;k=k eaMh izkIr gksdj ykWx cqd esa {ks= ds ckgj laHkkx Lrj dz; bZ/ku dk bUnzkt dj ij ;k=k ,oa jkT; Lrj ij 10 Hkqxrku gsrq ys[kk 'kk[kk dh xbZ ;k=k dk izfrekg dks fn;k tkrk jgk gSA xks'kokjk ,oa Mhty [kir ,oa vkSlr dk fooj.k ugha fn;k x;k gSA ekg vDVwcj 2013 ls ekpZ 2015 rd ykWx cqd la/kkfjr u gksus ls izLrqr ugha dh xbZA 1- Jh lkousj izHkkjh ys[kkiky ds vfHkdFku izn'kZ 16 layXuA 2- Jh iznhi fclsu LVksj dhij vfHkdFku izn'kZ 17 layXuA
18. A bare perusal of the aforesaid reflects that, the allegations pertaining to irregular bills towards consumption of diesel, name of the petitioner herein, was not at all mentioned therein. It further reflects that for the period commencing from 15-7-2009 to 22-7-2011, diesel was consumed in excess to the quantity which is mentioned in Circular dated 31-8-2007 (Annexure-R/1). So far as subsequent period is concerned, in view of the submission of Shri Anokhilal Savner, In-charge Accountant, it was concluded that excess expenditures were not made. Shri Anokhilal Savner is the petitioner in connected petition.
19. The aforesaid extract of the enquiry report, undisputedly does not even reflect the name of the present petitioner. Column (4) though concludes that the complaint was found to be partly proved and consumption of diesel was found to be in excess of the quantity stipulated in the circular, but it was nowhere concluded that the petitioner herein, was guilty of 11 violation of the provisions of the Circular, which contains cutoff limit as regards consumption of diesel.
20. Undisputedly, the enquiry report was the result of the enquiry in which the petitioner herein was not allowed participation. The petitioner herein, was only issued a notice to show cause, dated 20-10-2016 contained in Annexure-P/6. The said show cause notice has been replied by the petitioner, vide his reply which is contained in Annexure-P/7. Paras 4,5 and 7 of the reply being relevant for the present purpose, are being reproduced hereunder:
^4- ;g fd esjs }kjk mDr okgu dk vukf/kd`r mi;ksx ugha fd;k x;k gS ;fn vukf/kd`r mi;ksx fd;k tkrk gS okgu esa Mhty ds [kir ds fcyksa dk Hkqxrku ugha fd;k tkuk Fkk fdUrq Lohd`rdrkZ ,oa vkgj.kdrkZ vf/kdkjh lfpo }kjk bu fcyksa dk Hkqxrku fd;k x;k gS ;g lkspuh; gSA bl izdkj eSa nks"kh ugha gwWa u rks eSa Lohd`rdrkZ vf/kdkjh gwWa u gh vkgj.kdrkZ vf/kdkjh gwWaA bl gsrq ofj"B dk;kZy; ds lEiw.kZ vkns'kksa funsZ'kksa dh tkudkjh dk;Zikyu vf/kdkjh lfpo dks Fkh ftuds }kjk fcyksa dks ekU; fd;k tkdj Hkqxrku dh dk;Zokgh dh gSA ftl gsrq iw.kZr% eq>s nks"kh ekuk tkuk mfpr izrhr ugha gksrk gSA u gh mDr vkjksi eq>s ekU; gSA 5- ;g fd esjs }kjk 10 fcUnqvksa ij pkgk x;k fjdkMZ eq>s iw.kZ :i ls u rks voyksdu djk;k gS u gh eq>s miyC/k djk;k x;k gSA pwafd tkWap izfrosnu esa tkapdrkZ vf/kdkjh milapkyd bankSj }kjk eq>s fdl vk/kkj ij eq>s nks"kh ekuk gS ;g tkWp izfrosnu ds miyC/k djk;s tkus ds i'pkr~ rFkk mYysf[kr isij dfVax o vU; tkudkfj;kWa izkIr gksus ds i'pkr~ gh eSa viuk iw.kZ :i ls i{k leFkZu djus gsrq foLr`r izfrmRrj izLrqr dj ldwaxkA 7- ;g fd vfHkys[k fnukad 10-11-2016 dks voyksdu esa ;g Hkh ik;k x;k fd ofj"Bky; dk i= dzekad e.Mh Lohd`fr 5210@806 Hkksiky fnukad 07-10-2008 tks fd lfpo d`f"k mit e.Mh lfefr [k.Mok dks funsZf'kr gS dk Hkh eq>s dksbZ fyf[kr ;k ekSf[kd rFkk uLrh ds lkFk voyksdu ugha djk;k x;k gSA vr% fu/kkZfjr ek=k ls vf/kd Mhty ,oa vkbZy dk vkjksi ekU; ugha gSA tks fd ljklj >wB gSA* [Emphasis supplied] 12
21. A perusal of the aforesaid stand of the petitioner, if taken into consideration cogitatively, the same makes it abundantly clear, that the petitioner was demanding the documents which led to submission of enquiry report. From a perusal of the reply, it is further evident, that the petitioner herein, categorically denied the allegations levelled against him, inasmuch as, there was specific denial by the petitioner, as regards the allegation. It was incumbent upon the authority to conduct an enquiry allowing due participation of the petitioner.
22. At this juncture it is useful to refer to the decision of this Court rendered in the case of Mahendrasingh vs. State of M.P. and others, 2005(4) MPHT 25, wherein this Court while dealing with the provisions of Section 55 of the Adhiniyam, in para 16 held as under :
"16. Since the preliminary enquiry report was not furnished to the petitioner and along with the show cause notice, Annexure-P/1, 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 witness, therefore, it cannot be said that a reasonable opportunity was given to the petitioner."
23. Further, in the case of Bhagwan Singh Rawat vs. State of M.P. and others, 2003(4) MPHT 309 this Court in para 8 held as under :
"8. The main allegation against the petitioner is of making demand of illegal gratification from Ganesh Sahu.13
It is conceded by learned Counsel appearing for the parties that the petitioner has not been found guilty so far in enquiry as to demand of illegal gratification from Ganesh Sahu. Thus, the main allegation on the basis of which the entire proceedings have been initiated, has not been found established so far. Even in the instant enquiry against the petitioner, in the show-cause notice (P-7), it was mentioned that the petitioner had demanded 'illegal gratification' from Gancsh Sahu and in that connection, in order to defend himself, he submitted false certificate. In my opinion, until unless petitioner is found guilty of demanding illegal gratification and charge is established petitioner could not be fastened with the penalty of removal from the post of Agriculture Member, Krishi Upaj Mandi Samiti, Bhopal, without making any enquiry into charge of demand of illegal gratification. Section 55 of the Adhiniyam deals with removal of Member, Chairman, Vice-Chairman of market committee in case member misconducts, neglects or has incapacity to perform his duty. In the instant case, for his main conduct of demanding illegal gratification, so far charge has not been found established. No enquiry has been done by the respondents so far for the reasons best known to them against the petitioner into the main charge. In my opinion, the removal of the petitioner is clearly illegal and arbitrary. In case it is found that the petitioner is guilty of demanding illegal gratification, correctness or otherwise of his defence could have been seen. In any case, since the main charge has not been enquired into and defence has been looked into first, such a recourse can not be said to be fair and proper one. Submitting the certificate can not be said to be an act in performance of duty by the petitioner, if he has demanded illegal gratification, obviously the petitioner can be held guilty of submitting false certificate, otherwise same is inconsequential document. As the main charge has not been gone into so far, the impugned orders can not be allowed to stand."
24. It is profitable to refer to the decision of this Court rendered in 14 the case of Bansmani vs. State of M.P. and others , 1980 JLJ 60, wherein the Division Bench held, that a person who holds an Office as a Member or President of the statutory body, has right to continue in the Office, until expiry of the term. As the order of removal deprives such person from enjoyment of this right and also causes stigma, therefore, the same requires an opportunity of hearing. The relevant para of the order is extracted hereunder :
"......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 a person. It was further observed that the power of removal is quasi-judicial in nature. While taking action under 116 of the Panchayat Act, the State gfovernment should not only disclose the charges but also the entire material on which the charges are based to the person concerned so as to afford him real opportunity to show cause against the charges. Further, the State Government should give reasons in support of the order removing the person from the office so as to indicate why the explanation submitted is not acceptable."
25. Even in case of removal of a Sarpanch, under the provisions of Section 40 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993, this Court in the case of Mango Bai vs. State of M.P. and others, 2003(2) MPLJ 112 held, that secret enquiry or preliminary enquiry 15 alone is not enough. Collection of evidence is required and participation of person against whom the action is sought to be taken is sine qua non.
26. A perusal of the aforesaid makes it clear that, an opportunity of being heard was a condition precedent, inasmuch as the authority concerned placed reliance on the enquiry report, dated 24-6-2015. The petitioner deserved due opportunity of hearing and was further entitled for the documents which were demanded by the petitioner, vide his application which is contained in Annexure-P/6 and the record which was demanded by the petitioner in his reply as well, which is contained in Annexure-P/7.
27. Undisputely, the petitioner was holding the Office of Chairman of the Samiti and, therefore, he was entitled to complete the statutory tenure. But, the order impugned has been passed, by which present petitioner has been removed from the post of Chairman of the Samiti. Further, a perusal of the enquiry report which is at page No.33 of the return filed by the respondents, reflects that the same is not in respect of the petitioner, inasmuch as neither charge was found proved against the petitioner nor there is any finding regarding the charge, against the petitioner.
If the authority was of the opinion, that the petitioner was guilty of irregularity in consumption of diesel, then an enquiry was required to be conducted, allowing due participation of the petitioner therein. 16
28. The judgment placed reliance upon by the learned counsel for respondents in Someshwar Patel (supra) is distinguishable, inasmuch as in the present case, the enquiry report at page No.33 of the return, does not connect the petitioner, as regards the allegations which were levelled against him. Simultaneously, the judgment relied upon by respondents in the case of Bjharilal Tikaram (supra) is also distinguishable on facts.
29. Therefore, in this view of the matter, the impugned order dated 26-5-2017 (Annexure-P/1), stands quashed. This order shall not come in the way of the respondents, if they decide to proceed against the petitioner afresh, in accordance with law.
30. In view of the aforesaid finding, the order impugned dated 24-4- 2017 (Annexure-P/1), in the connected W.P. No.8209/2017, which only pertains to recovery, also stands set aside, and this order shall not come in the way of the respondents, if they decide to proceed against the petitioner therein afresh, in accordance with law.
31. Ex-consequenti, the writ petitions stand allowed to the extent indicated hereinavbove.
(MANINDER S. BHATTI ) JUDGE ac.
Digitally signed by AJAY KUMAR CHATURVEDI Date: 2023.02.16 11:48:26 +05'30'