Anmol Ram Singh vs State of Chhattisgarh and Others

Hon''ble Shri Satish K. Agnihotri, J.—By this petition the petitioner seeks to challenge the legality and the validity of the order dated 26.09.2011 (Annexure-P/1) passed by the respondent No. 3 by which the petitioner has been removed from the post of Sarpanch of Gram Panchayat, Jhilmili, Janpad Panchayat, Bhaiyathan, Tahsil Surajpur, District Sarguja. The facts, in brief, as projected by the petitioner, are that the petitioner was duly elected Sarpanch of Gram Panchayat, Jhilmili, Janpad Panchayat, Bhaiyathan, Tahsil Surajpur, District Sarguja, on 03.02.2010 (Annexure-P/2). According to the petitioner, under the Mahatma Gandhi Rashtriya Rojgar Guarantee Yojana an amount of Rs. 5,33,000/- was granted for construction of 1 km. Mitty-Murum road from Rajbhar Marg to the house of Atari. The said construction work was started on 06.12.2009 i.e. prior to election of the petitioner. Most of the bills in respect of the said construction works have been released before the election of the petitioner and after the election of the petitioner on the basis of report submitted by the concerned Engineer, namely, Shri S.R. Soni and the Panchayat Secretary as well as Rojgar Sahayak, the petitioner passed the final bills.

On the basis of complaint made by one Member of Zila Panchayat, namely; Shri Santosh Kumar Sarthi, on 29.11.2009, in respect of inferior quality of the construction work, an enquiry was conducted by the Tahsildar and thereafter a case u/s 40 of the Chhattisgarh Panchayatraj Adhiniyam, 1993 (for short the Adhiniyam, 1993) has been registered and the notices were issued to the petitioner as well as the Panchayat Secretary, to which the petitioner and the Panchayat Secreatry have submitted their respective responses vide annexure P/4 and P/5, respectively.

Subsequently, the S.D.O. sought an enquiry report from the Chief Executive Officer, Janpad Panchayat, Bhaiyathan, and also recorded the statement of the Chief Executive Officer, but no opportunity has been afforded to the petitioner to cross-examine the Chief Executive Officer. Even the Tahsildar who conducted the enquiry and the complainant namely; Santosh Kumar Sahu on whose complaint the action has been taken have not been examined by the Sub Divisional Officer and passed the impugned order by terminating the petitioner from the post of Sarpanch of Gram Panchayat, Jhilmili, Janpad Panchayat, Bhaiyathan, Tahsil Surajpur, District Sarguja, in an illegal and arbitrary manner. Hence this petition.

Shri Pandey, learned counsel appearing for the petitioner, would submit that the preliminary enquiry was conducted at the back of the petitioner and thereafter, a show cause notice was issued. No opportunity to cross-examine the witnesses was afforded and further, the documents, which have been relied on in the enquiry, were also not supplied to the petitioner to file his response.

On the other hand, Shri Shrivastava, learned Panel Lawyer appearing for the State, would submit that before passing the impugned order proper show cause notice was issued to the petitioner, to which the petitioner submitted his reply, but the petitioner has not submitted any document in support of the reply. Even before Sub Divisional Officer, the petitioner has not sought any opportunity for submitting the documents and adducing the evidence in support of his case. In presence of the petitioner, the statement of the Chief Executive Officer, Janpad Panchayat, Bhaiyathan was recorded, therefore, it cannot be said that no opportunity to cross examine the witness was afforded to the petitioner. Shri Shrivastava would further submit that the petitioner is trying to shift his burden on the shoulder of others. Being the Sarpanch, the petitioner is duty bound to utilize the funds allocated to the Gram Panchayat for development work in a proper manner.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. Case of the petitioner is that the petitioner was elected after construction of the subject road and also several bills were settled before that. The complainant Santosh Kumar Sarthi was not examined neither in person nor otherwise before the impugned order was passed. It was further stated that the petitioner was not afforded opportunity to cross-examine the Chief Executive Officer, Janpad Panchayat, Bhaiyathan. Though it was found that the said Chief Executive Officer was examined, but there is no mention in respect to the fact as to whether he was cross-examined or not.

On perusal of the impugned order, it is found that the enquiry was done in a cursory manner without following the requirement of basic principles of natural justice that if a person makes an allegation against other person, other person has to be afforded an opportunity to cross-examine the person making allegation. The complainant, on the basis of whose complaint, enquiry was conducted may be held as prime evidence and he should have been summoned for recording his statement before the authority in presence of the person against whom allegations are made and the said alleged accused person must have been given full opportunity to cross-examine him i.e. the complaint.

In view of foregoing, the order dated 26.9.2011 (Annexure-P/1) is set aside and the matter is remitted back to the SDO/respondent No. 3 to consider the case afresh as to whether the work was done during the tenure of the petitioner or prior to his election on the post of Sarpanch, and pass the order, as early as possible preferably within a period of three months, in accordance with law and on its own merits. It is made clear that before passing the order, proper opportunity to examine and cross-examine the witnesses be also granted to the concerned parties. Resultantly, the writ petition is allowed to the above extent. No order as to costs.