Madhya Pradesh High Court
Smt. Reshmabai vs Panchayat And Rural Development ... on 15 May, 2019
1 WP No.4082/2019
HIGH COURT OF MADHYA PRADESH: BENCH: INDORE
(SINGLE BENCH: HON.MR.JUSTICE PRAKASH
SHRIVASTAVA
WRIT PETITION No.4082/2019
Smt. Reshmabai ... Petitioner
Vs.
State of MP & Ors. ... Respondents
Shri P.K. Saxena, learned senior advocate with Shri
Mukesh Kumar Tare, learned counsel for petitioner.
Shri Amit Singh Sosodia, learned counsel for respondent
No.2.
Ms. Preena Salgiya, learned counsel for the State.
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Whether approved for reporting:-
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ORDER
(Passed on 15/05/2019) 1] The petitioner is aggrieved with the order dated 7 th of November, 2017 passed by respondent No.3 removing the petitioner from the post of Sarpanch, Gram Panchayat, Goganva under Section 40 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 as also the order dated 22nd of February, 2019 passed by the Commissioner dismissing the appeal and affirming the order of removal. 2] The case of the petitioner is that she was elected as Sarpanch of the Gram Panchayat, Goganva and show cause notice dated 31/08/2017 was issued for the proposed action 2 WP No.4082/2019 under Section 40 of the Act, which was replied by the petitioner on 31/09/2017 but thereafter again another show cause notice dated 11/09/2017 was issued. Some inquiry behind the back of the petitioner was conducted and without giving any proper opportunity, the impugned order of removal was passed which has been affirmed in appeal. 3] Whereas the stand of the respondents is that the petitioner has been removed from the post of Sarpanch as there was allegation of defalcation and the removal is after following the due process.
4] Learned counsel appearing for the petitioner submits that the petitioner has been removed without conducting any inquiry as contemplated under Section 40 of the Act and that no evidence has been recorded and no charge sheet has been served, hence, the order is passed in violation of the principles of natural justice.
5] As against this, learned counsel for the respondents submit that the principles of natural justice has been followed and the petitioner was issued show cause notice and she had also filed the reply, hence, the order was passed in accordance with the requirement of Section 40 of the Act. 6] Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that in the present case, the petitioner was served with the show cause notice for removal and she had filed the reply but thereafter no further inquiry has been conducted. The proceedings of respondent No.3 are on record, which reflects that on the very first date of registering the case under Section 40 and issuing the show cause notice, the report in respect of opinion of Block 3 WP No.4082/2019 Panchayat Officer, Janpad Panchayat, Goganva was called. The proceedings were initiated on 11 th of September, on 12th of September the petitioner had appeared and filed the reply and the matter was adjourned awaiting the report of the Janpad Panchayat. The report of the Janpad Panchayat was received on 10/10/2017, thereafter on 24/10/2017 the Presiding Officer was on leave and on 31/10/2017 the case was closed for final order and on 07/11/2017 the final order was passed. Hence, it is clear that in the proceedings, no witnesses have been examined, no opportunity has been given to the petitioner to adduce the evidence. The impugned order of removal dated 07/11/2017 reveals that the report which was received from the Block Panchayat Officer has been relied upon, whereas, there is nothing on record to show that at the stage of submission of report, the petitioner was given any opportunity. Even the person on whose complaint the proceedings were initiated, have not been examined nor any document of defalcation or embezzlement has been proved in the inquiry.
7] This Court in the matter of Raja Raj Singh Vs. State of M.P. and others reported in 2000 (2) JLJ 242 in a case where before passing the order of removal under Section 40, no inquiry was conducted by the prescribed authority, no complaint was examined and the copies of the documents used against office bearer were also not supplied, had found that the inquiry and the resultant order under Section 40 is liable to be quashed.
8] The Division Bench of this Court in the matter of Manita Jaiwar Vs. State of M.P. and others reported in 2009 (3) 4 WP No.4082/2019 MPLJ 370 while considering the similar issue in a case where no proper inquiry was conducted, while setting aside the order of removal had observed as under:-
"6. This Court in Kailash Kumar Parmanand Dangi Vs. State of M.P. and others, 1992 (2) MPLJ 722 had held that in such matters the enquiry held behind the back of Sarpanch, cannot be relied upon. The following discussion has been made by this Court:-
14. In the present case there was not total violation of the principles of natural justice as a show cause notice was given and the reply of the petitioner obtained. But keeping in view the facts of the case certain facets of natural justice as stated above were not complied with resulting in prejudice to the petitioner. He was not permitted to adduce his own evidence to rebut the material collected against him. The charges were such which could be proved or disproved by evidence in the inquiry. One of the main charges was the distribution of pattas to those who were not landless and a conclusion on this point could be reached after recording evidence and after seeing the list supplied by the Tehsildar or the B.D.O. The prescribed authority in the impugned order has not dealt with this aspect. Similarly the charges regarding negligence in the maintenance of garden, supply of water, drainage and information regarding the meeting of the Gram Sabha could be decided on the basis of evidence and not merely relying upon a preliminary inquiry report. The basic fault in the impugned order is that an inquiry held by the B.D.O. behind the back of the petitioner has been held to be a valid 'inquiry' under Section 40 of the Act and he has been packed- up on the basis of that inquiry without even supplying a copy of the same to the petitioner, and without affording him an opportunity to lead his own evidence even when he repeatedly asked for the same. This was denial of fair hearing resulting in serious prejudice to the petitioner.
The action of removal and disqualification has to be struck down as there has been a failure of justice. The guilty must be punished but the finding of guilt has to be arrived after fair hearing which was denied in this case. In Ballabhdas v. State of M.P., 1998(2) JLJ 303, it has been observed by this Court that a full fledged enquiry is provided under Section 40 of the Act. It contemplates 'due enquiry'. As observed in Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101 right to fair treatment is an essential inbuilt of natural justice which is an integral part of the guarantee of equality assured by Article 14 of the Constitution of India. The concept of reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution.
In Rajendra Singh Raghuvanshi Vs. State of M.P. and others, 5 WP No.4082/2019 2004(4) MPLJ 6, this Court had laid down that copy of the enquiry report has to be furnished. In Mango Bai Vs. State of M.P. and others, 2003(2) MPLJ 112, this Court has laid down thus:-
9. Principles of natural justice are required to be observed before ordering removal of Sarpanch under section 40 of Act in Kailash v. State of M.P, 1999 (2) MPLJ 722 : 1999 (2) JLJ 280 esteemed brother S.P Khare, J. considered the question and held that removal of Sarpanch under section 40 is a serious matter when he is removed and further disqualified for six years to be elected under the Act. It is not sufficient to give a mere lip-service to the requirement of law. It is true that it is not specifically provided in section 40 that principles of natural justice should be 'followed while holding' an enquiry but it is implicit in this provision that the office-bearer who is sought to be removed will be Page:
374given a fair hearing. This Court held that the words "after such inquiry as it may deem fit to make" in the main part of section 40(1) of the Act would mean an inquiry which is held in the presence of the office-bearer and not behind bis back. He should be allowed to inspect the documents which are to be relied upon against him and he should have the right to adduce his own evidence. These are the important facets of an inquiry to be held in conformity with the principles of natural justice. It is not the subjective choice of the prescribed authority to get an inquiry held of any kind. It does not envisage a secret enquiry or a preliminary enquiry alone. That is made only for collection of evidence and at that stage there is no participation of the person against whom the action is sought to be taken. The words "as it may deem fit" have to be construed objectively and would mean an inquiry depending upon the facts and circumstances of each case. Some of the facts of the inquiry may be excluded if the facts are not very much in dispute or there are other circumstances to dispense with them. But the office bearer has a right of fair hearing. "You must hear the person who is going to suffer". That is a duty which lies upon every one who decides anything. There is, however, some flexibility depending upon the subject-matter. Similar is the law laid down by this court in Raja Rai Singh v. State of M.P, 2001 (4) MPLJ 364 : 2000 (2) JLJ 242.
10. Secret enquiry or preliminary enquiry alone is not enough. Collection of evidence is required and participation of person against whom the action is sought to be taken. Order sheets of the SDO's file indicates that by-parte enquiry was not held at all nor was directed. Panchayat Inspector conducted the ex parte enquiry. Report of which not supplied. Thereafter an incompetent authority, SDM considered the report and recommended the removal and order dated 31-3-1999 mentioned that Prescribed Authority i.e SDO was in agreement with the view of the SDM and has passed the order on 31-3-1999 itself. Whereas it was 6 WP No.4082/2019 incumbent upon the SDO to receive the reply and to apply independent mind after holding an enquiry. All these requirements have been flagrantly violated in the instant case. Considering the serious nature of charges levelled against the petitioner she ought to have been given due and proper opportunity."
9] This Court in the matter of Rajendra Singh Raghuvanshi Vs. State of M.P. and others reported in 2004 (4) MPLJ 6 in a case where the inquiry report submitted by the three member committee was relied upon but the same was not supplied to the petitioner, while setting aside the order of removal, had directed for supplier of the inquiry report. In the preset case also there is nothing on record to show that the report submitted by the Block Panchayat Officer was supplied to the petitioner.
10] In the similar circumstances, this Court vide order dated 13/03/2019 passed in W.P. No.29127/2018 in the case of Smt. Sugan Bai Parmar Vs. State of M.P. and others while setting aside the order of removal has held as under:-
"That apart, it is also noticed that during the enquiry no witnesses have been examined and no opportunity to cross examine has been given to the petitioner. This Court in the matter of Kailash Kumar Dangi Vs. State of MP & Ors. 1999(2) JLJ 280 has held that the word enquiry in Sec.40(1) of the Act are in the nature of enquiry as envisaged under Article 311 of the Constitution, hence the concerned person is to be informed of the charges and opportunity of hearing is to be given and also the opportunity to adduce the evidence as required to be given. The division bench of this court in the matter of Manita Jaiwar Vs. State of MP & Ors 2009(3) MPLJ 370 as also this Court in the subsequent judgment in the matter of Kailashchandra Jain Vs. State of MP & Ors 2003(3)MPLJ 260 and the order dated 20/12/2018 passed in WP No.22978/2018 in the case of Vikram Singh Vs. State of MP & Ors. has reiterated the same."
11] So far as the Division Bench judgment in the matter of Harishankar Patel Vs. State of M.P. and others reported in 7 WP No.4082/2019 1999 (1) MPLJ 16 relied upon by learned counsel for the respondent is concerned, the same mainly relates to the action of suspension under Section 39 of the Act and from that judgment, it cannot be inferred that the removal of the Sarpanch can be done without properly complying with the principles of natural justice and without conducting any inquiry. 12] The record further reflects that considering the aforesaid circumstances, this Court vide order dated 01/03/2019 had stayed the operation of the removal order as well as the appellate order and the same have not been given effect to.
Having regard to the aforesaid circumstances of the case, I am of the opinion that the impugned removal order dated 07/11/2017 and the appellate order of the Commissioner dated 22/02/2019 cannot be sustained and are hereby set aside with liberty to the respondents to take fresh action in accordance with law under Section 40 of the Act against the petitioner, if they so desire keeping in view the observations made above.
C.c. as per rules.
(PRAKASH SHRIVASTAVA) JUDGE Krjoshi Digitally signed by KHEMRAJ JOSHI Date: 2019.05.15 18:11:16 +05'30'