Amit Ankre S/O C.S. Ankre vs Divisional Commissioner, Bhopal Division And Another @RESPONDEN

This order shall also govern disposed of Writ Petition Nos.16981 / 2019 and 26359 / 2018 as common question of law is involved in all the three petitions.

The petitioners have filed the present petition under Article 226 of the Constitution of India, challenging the order dated 29.6.2019 passed by the Commissioner, Bhopal Division, Bhopal in Appeal No.347/2017 and the order dated 7.10.2017 passed by the Chief Executive Officer, Jila Panchayat, Rajgarh.

For the sake of brevity, the facts narrated in writ petition No.14853/2019 are as under:-

The petitioner was working on the post of Block Co-Ordinator (Contractual), Swatch Bharat Mission (Rural) since December 2013 up to 15.6.2017 vide order order dated 20.12.2013 by Clean India Mission (Panchayat and Rural Development)Department, Development Commission Office, Government of Madhya Pradesh and he was posted at Jila Panchayat Rajgarh. In April-May 2017, an enquiry committee was constituted by the District Collector to examine the irregularity in the construction of individual household toilets. Based on the findings of the Committee, on 16.5.2017, a show cause notice was issued to the petitioner as to why the specified amount of Rs.21,72,000/- should not be recovered from the petitioner. The petitioner submitted reply of the said show cause notice on 31.5.2017. Fourteen days later the respondent No.2 without giving proper opportunity, an information in sought had made to lodge two F.I.Rs. on 15 and 16th of June, 2017 against the petitioner and few other stakeholders and they were enlarged on bail under Section 438 of Cr.P.C. and the trials in both the cases are pending before the court below. Four months later, on 7.10.2017, an order was issued by the respondent No.2- Chief Executive Officer, Jila Panchayat directing the Tehsildar to recover a sum of Rs.21,72,000/- within a period of 15 days of the date of the order. However, the said order was never communicated to the petitioner. It is only after nine months, the petitioner was shocked to know that an arrest warrant has been issued against him by the respondent No.2 for default of deposition of the recovery amount. Thereafter, the petitioner preferred an appeal against the recovery order before the respondent No.1 and the said appeal was dismissed by the Divisional Commissioner, Bhopal Division, Bhopal. Being aggrieved with that order, the petitioner has filed the present petition.

Learned counsel for the petitioner has submitted that, the order of penalty of huge recovery of Rs.21,72,000/- was passed without conducting any enquiry in respect of the allegation. He submitted that the appeal preferred by the petitioner was rejected only on a single ground that, as per the Government Circular dated 3.2.2015, the duty of the petitioner as Block Co-Ordinator shall perform the duties as and when given by the Chief Executive Officer of the Janpad Panchayat. The ground, on which the appeal was dismissed, was never taken before the appellate authority. The appellate authority has not properly considered all the grounds, which have been taken by the petitioner at the time of argument of the appeal. In Circular No. 2207 dated 3.2.2015 entrusted the roles and responsibility to the respective stakeholders which clearly mentioned that the financial authority has been entrusted on the Chief Executive Officer and Accounts Officer of the Jila Panchayat and it is the Chief Executive Officer of the Janpad Panchayat, who is responsible for construction of toilets and quality assurances. Therefore, the petitioner being an employee of contractual in form, did not release any amount nor does approve, verify or cross verify nor certify any payment against in complete or non-existent toilets if any. In the said circular it is also mentioned that the petitioner is responsible only for such acts and duties which was entrusted to him by Chief Executive Officer. However, no such duty such as verification of toilets, approval of payments or examination of bills or of such kinds was given to the petitioner, which sets direct accountability on to the petitioner. He further submitted that, the impugned orders Annexure P/1 & P/2 are illegal, invalid and arbitrary and the same have been passed without application of mind. He also submitted that, order of appeal Annexure P/2 is concerned; the said appeal has been decided purely mechanical and without application of mind. While deciding the said appeal the appellate authority has not considered the ground which is raised by the petitioner in the appeal. He further submitted that the Appellate Authority while passing the order has erroneously placed reliance on government circular dated 3.2.2015, whereby the duty of the petitioner as Block Co-ordinator shall perform the duties as and when given by the Chief Executive Officer of the Janpad Panchayat. As per this Circular, it is clearly mentioned that no such authority has been entrusted to the petitioner. So far as the order Annexure-P/1 is concerned; the same has been passed without taking reply of the petitioner and, therefore, as such no fair opportunity of hearing was given to the petitioner while passing the said order. He further submitted that the petitioner has not given any opportunity to defend himself before the enquiry officer and the enquiry was conducted ex-parte. On the basis of the said enquiry report, a show cause notice was issued to the petitioner for recovery of the said amount. He further submitted that the Chief Executive Officer, Janpad Panchayat was responsible to complete the toilets with quality. Thus, the entire enquiry report is vague and therefore, the impugned orders be set aside.

The respondent No.2 has filed the reply and stated that the petitioner contended that the present petition is being filed by him against the order dated 29.6.2019 passed by the respondent No.1 in the appeal. The said appeal was filed by the petitioner against the order dated 7.10.2017 passed by the Chief Executive Officer, Jila Panchayat, Block-Rajgarh, whereby the Tehsildar was directed to recover the amount from the petitioner within 15 days of issuance of the said order. The respondents further stated that order dated 7. 10.2014 has rightly been passed against the petitioner. The order passed by the respondent No.2 has also been confirmed by the respondent No.1 vide order dated 29. 6.2019. It is further stated that the petitioner has committed financial irregularities during the course of implementation of the scheme of Swatchha Bharat Mission. That, on the basis of enquiry with respect to construction of individual household toilets under the scheme of Awachha Bharat Mission Rural note sheets were submitted and thereafter an enquiry was conducted by the Chief Executive Officer, Janpad Panchayat on 26.5.2017 and a show caust notice was issued to the petitioner. In the show cause notice, it was contended that during the course of enquiry it was found that financial irregularity has been committed by the petitioner during the course of the construction of the individual household toilet under the aforesaid scheme. Hence, show cause notice dated 26.5.2017 under Section 92 of the M.P. Panchayat and Gram Swaraj Adhiniyam, 1993 was issued. It is further submitted that, before passing the impugned order, inspection has been done in relation to construction of the individual household toilets in the Gram Panchayat Dhanwaskalan, wherein it was found that for the construction of the 678 individual household toilets, the amount of Rs.52,68,000/- was sanctioned, out of which, total amount for the construction of 200 toilets and the first installment for the construction of 478 toilets was disbursed. It is further submitted that, out of which, only 212 individual toilets were construction and the construction of the toilets is of very poor quality and in other Gram Panchayat's situation is similar. The amount so involved was disbursed by means of bills and vouchers found forged. It is submitted that, it was found that the enterprises, which was shown with respect to supplying of the building material for the construction of the toilets was not in existence. The Tin number of the enterprises was wrongly mentioned. It is submitted that the petitioner was found liable for misuse of the public money being the ten Block Co-ordinator in the Jila Panchayat. The petitioner failed to perform his duty as per the procedure and rules. So far as the circular No.2207 issued by the State Government is concerned; the petitioner contended that the said circular entrusted the roles and responsibility to the respective stakeholders which clearly mentioned that the final authority is being entrusted on C.E.O. and Account Officer of Jila Panchayat. The respondent in the reply has stated that the fact final enquiry was conducted against the petitioner in detail. After the enquiry, the Chief Executive Officer has found that the petitioner has misappropriated a huge amount and so many bills and vouchers, which were produced in the enquiry, were found to be forged and fabricated. Therefore, FIR was also lodged against the petitioner and arrest warrant was also issued against him. Therefore, there is no merit in the petition and it deserves to be dismissed.

Heard learned counsel for the parties and also perused the record.

In the present case, the petitioner has challenged the order dated 29.6.2019 passed by the respondent No.2 as well as the order dated 7.10.2017 passed by the respondent No.1 thereby the Tehsildar has directed to recover an amount of Rs.21,72,000/- from the petitioner within 15 days of the issuance of the said order. Learned counsel for the petitioner has contended that the impugned order has been passed without following the principles of natural justice. From perusal of the record, it appears that a secret enquiry has been held against the petitioner behind his back. The petitioner has not given any opportunity to lead any evidence before the enquiyr officer. On the basis of the finding given by the enquiry officer, the show cause notice was issued to the petitioner and without considering the all the grounds raised by the petitioner in the reply the impugned order of recovery has been passed. Against the said order, the petitioner has preferred an appeal before the appellate authority and the appellate authority has dismissed the said appeal. From perusal of the appellate order, it reveals that, the appellate authority although has passed a detailed order, but it is a fact finding order, which cannot be based only on the basis of the facts. Therefore, this Court cannot go into the merits of the order passed by the appellate authority.

Counsel for the petitioner has relied on the judgment passed in the case of Kadam Singh vs. State of Madhya Pradesh in W.P.No.8251/2016 decided on 20/8/2018 whereby this Court in para 7 has held as under:-

"7. From perusal of the extract quoted above, it is evident that the liability of the petitioner has already been determined and the petitioner is being asked to deposit the amount and thereafter to file the reply up to 20-8-2015. The alleged notice dated 7 -8-2015 by no stretch of imagination can be called to be a show cause notice. In fact, it is an order directing the petitioner to deposit the amount first and then to submit the reply up to 20.8.2015 failing which, proceeding under section 92 of the Act, 1993 shall be initiated against the petitioner. The impugned action is being taken in flagrant violation of principles of natural justice. The impugned communication i.e. show cause notice dated 7-8-2015 does not fulfil the requirement of a valid notice in as much as, it does not contain the particulars of the grounds on which the proposed action is sought to be taken. Admittedly, the report prepared by the Chief Executive Officer, Janpad Panchayat Prithvipur distt.Tigamgarh, on which the show cause notice is founded, has also not been supplied to the petitioner."

In the case of Rahul Tripathi vs. State of M.P. a similar view has been taken by this Court.

Thus, in view of the aforesaid, as no proper opportunity of hearing was given to the petitioner, the present writ petition is allowed and the impugned orders dated 7.10.2017 and 29.6.2.2019 (Annexure P/1 and P/2) are hereby set aside. However, the respondents shall free to take action against the petitioner after following due procedure.

Original order be retained in Writ Petition No.14853/2019 and a copy whereof be placed in the record of connected W.P.Nos. 16981/2019 and 26359/2018.

No order as to costs.