Mantar Singh vs State Of Madhya Pradesh And Ors.

The petitioner has filed the present petition under Article 226 of the Constitution of India, challenging the order dated 26/06/2019, passed by the respondent No.2/Chief Executive Officer, Jila Panchayat, Dhar, District - Dhar(M.P.).

The petitioner is elected Sarpanch of the Gram Panchayat Barda, Janpad Panchayat Dahi, District Dhar. He was elected as a Sarpanch in the year 2015. On 8/09/2017, the petitioner was served a show cause notice under Sections 92 & 40 of the M.P. Panchayat Raj and Gram Swaraj Adhiniyam, 1993 (hereinafter referred as the "Adhiniyam"), making certain allegations in respect of work done in the Gram Panchayat Barda. The Petitioner filed the reply to the aforesaid show cause notice, denying all the allegations made in the show cause notice. However, the Respondent No. 2, without making enquiry as required under Section 40 of the Adhiniyam, 1993, passed an order dated 27/03/2018 thereby removing the petitioner from the post of Sarpanch. Against the said order, the petitioner before this Court had filed a Writ Petition bearing W.P. No. 8661/2018 and this Court by way of interim relief stayed the operation of order dated 27-03-2018 and thereafter Writ Petition was allowed by this Court vide order dated 16/07/2018. Against the said order, the Respondent No. 2 preferred a Writ Appeal, which was earlier dismissed for the want of prosecution and thereafter restored and now it is pending for adjudication before this Court. Since the removal order was set aside, the Respondent No. 2 did not permit the petitioner to perform his duty as Sarpanch, therefore, he sent a Contempt Notice through his advocate and, thereafter, the respondent no. 2 permitted the petitioner to perform his duty as Sarpanch.

Thereafter, the respondent No. 2 with mala fide intention, issued a same show cause notice and directed the petitioner to file reply on or before 30-03-2019. It is humbly submitted that the aforesaid show cause notice was issued on 27-03-2019 and the same was served upon the petitioner on 29-03-2019, which itself reflects that the impugned show cause notice was nothing but an ideal ceremony to show that they have followed the principle of natural justice. In pursuance of the aforesaid show cause notice, the petitioner submitted an application dated 30/03/2019 before the Respondent No. 2, seeking the documents that on what basis the aforesaid show cause notice was issued to him. No reply of the said application was given by the respondents till today. Still, the petitioner filed a detailed reply along with the relevant documents, denying that the allegations made in the show cause notice are nothing but a bundle of false allegations. The petitioner also submitted an application under the RTI Act, seeking documents that on what basis the aforesaid show cause notice was issued, which is still not replied. The Respondent No. 2 without making any enquiry, which is the mandatory requirement under Section 40 of the Adhiniyam, 1993 and without giving proper opportunity of hearing to the petitioner and with mala fide intention vide order dated 26/06/2019 removed the petitioner from the post of "Sarpanch" which was earlier set aside by this Hon'ble Court in W.P. No. 8661/2018. Being aggrieved by the said action, the petitioner has filed the present petition.

Learned counsel for the petitioner submits that the impugned order dated 26-06-2019 is illegal and against the principle of natural justice and the same was passed without making enquiry, which itself reflects from the impugned order that no enquiry was conducted before issuing the impugned order of removal. As per Section 40 of the Adhiniyam which provides that, an enquiry has to be conducted before removing the office bearers of the Gram Panchayat. He further submits that the impugned order has been passed with a per-determined mind.

To bolster his submissions, learned counsel for the petitioner relied on the judgment passed by this Court in the case of Vikram Singh vs. State of M.P. and others passed in W.P. 229778 of 2018; Shridhar Dwivedi and others vs.Bhopal Sahkari Dugdha Sangh, Bhopal: reported in 2005(1)MPLJ 108; Kailashchandra Jain vs. State of M.P. and others: reported in 2003(3) MPLJ 260, Maya Chowdhary vs. State of M.P. and others :reported in 2012 (2) MPLJ 90, Chandrakanta Bai Vs. State of M.P.[2014 (IV) MPLJ. 479] and Rajendra Singh Vs. State of M.P. reported in [2004 (IV) MPLJ 6].

In light of the aforesaid, learned counsel for the petitioner submits that the impugned order is against the principle of natural justice, therefore, the present Writ Petition is maintainable and not an absolute bar on the ground of alternative remedy. He further submitted that, earlier, this Hon'ble Court was pleased to set aside the removal order on 16-07-2018 in W.P. No. 8661/2018 and against the said order, the respondent No. 2 has preferred a Writ Appeal before the Hon'ble Division Bench, which is registered as W.A. No. 1175/2018 and the same is pending for adjudication. Now the respondent can not initiate two parallel proceedings for the same cause of action. The Respondent No. 2 has no jurisdiction to issue the impugned order in view of the pendency of the Writ Appeal No. 1175/2018 before this Hon'ble Court, hence the impugned order is absolutely illegal and without jurisdiction. The impugned show cause notice was absolutely against the principle of natural justice because the authority has already come to the conclusion that the petitioner is guilty. At the stage of show cause notice, the person proceeded against must be told the charges against him, so that, he can take his defense and prove his innocence. At the stage of show cause notice, the authority issuing a charge sheet, can not instead of telling him the charges, confront him with definite conclusion of his alleged guilt. In support of the aforesaid, he placed reliance on the judgment of the Hon'ble Supreme Court in the case of Oryx Fisheries Vs. Union of India [2010 (XIII) SCC 427].

Learned Govt. Advocate for the respondent/State submits that the petitioner has alternative remedy of filing an appeal against the said order. He further submits that the impugned order has been passed after giving full opportunity of hearing to the petitioner. Therefore, the same is not required any interference and deserves to be dismissed.

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

In the present case, the petitioner is elected Sarpanch of the Gram Panchayat Barda, Janpad Panchayat Dahi, District Dhar. He was elected as a Sarpanch in the year 2015. On 8/09/2017, the petitioner was served a show cause notice under Sections 92 & 40 of the M.P. Panchayat Raj and Gram Swaraj Adhiniyam, 1993 (hereinafter referred as the "Adhiniyam"), making certain allegations in respect of work done in the Gram Panchayat, Barda. The petitioner submitted his reply to the said show cause notice, denying all the allegations made in the show cause notice. However, the Respondent No. 2 without making any enquiry, which is the mandatory requirement under Section 40 of the Adhiniyam, 1993 and without giving proper opportunity of hearing to the petitioner vide order dated 26/06/2019 removed the petitioner from the post of "Sarpanch" which was earlier set aside by this Hon'ble Court in W.P. No. 8661/2018. Being aggrieved by the said order, the petitioner has preferred the present petition.

From perusal of the order as well as the record, it reveals that the impugned order has been passed without making any enquiry. Section 40 of the Adhiniyam empowers that the State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time can remove an office bearer if he has been guilty of misconduct and no person shall be removed unless he/she has been given an opportunity of hearing. Sub-section (1) of Section 40 of the Adhiniyam provides that a person can be removed after such enquiry. Such enquiry does not mean only issuance of show cause notice to the concerned office bearer, but it requires that a detail enquiry has to be conducted before removing the office bearers that is, he/she must be given an opportunity to examine and cross-examine the witnesses.

In the case of Kailashchandra (supra) in para 4 of the judgment has held as under:-

"4. Shri B.P. Sahu has submitted the preliminary enquiry report. Enquiry was conducted by Shri Sahu in December, 2000. Show-cause notice was issued on 19-2-2001 under Section 40 of the Act. The report which has been submitted by CEO in the instant case after issue of show-cause notice is in favour of the petitioner. Earlier preliminary enquiry was ex parte enquiry though the statement of the petitioner was recorded. Thus, in my opinion, it was not open to act upon the preliminary enquiry report to remove the petitioner. Bi parte enquiry ought to have been conducted by the SDO giving petitioner opportunity of cross-examination of the witnesses. Nothing of that sort has been done. No semblance of enquiry has been held by the SDO. This Court in Kamal Kishore Krishna Gopal Khandelwal v. Janpad Panchayat, Nalkheda and Ors. MANU/MP/0049/2000, has held that enquiry under Section 40 is not an empty formality. There should be compliance of necessary provisions and person should be punished legally. Person has to be given due opportunity of defending himself by conducting the enquiry in the presence of the Sarpanch who is proposed to be removed. The Sarpanch has to be given opportunity of cross-examination of the witnesses, that opportunity has not been given in the case, if the enquiry report submitted was to be acted upon that is in favour of the petitioner. In case SDO was not to agree with it, further enquiry ought to have been held in presence of the petitioner proper enquiry is required subsequent to issue of show-cause notice. Thus, the order of removal of the petitioner cannot be sustained."

Thus, as per the said judgment, a Sarpanch has to be given an opportunity to cross-examine the witness and that opportunity has not given to the petitioner.

Similar view has also been taken by the co-ordinate Bench of this Court in the case of Maya Chowdhary (supra).

In the case of Vikram Singh (supra) relying on the judgment passed by the Division Bench in the case of Manita Jaiwar(Smt.) vs. State of M.P. & others: reported in I.L.R. (2009) MP 3067 in para 19 has held as under:-

As per the judgment passed by the Division Bench of this Court in the case of Manita Jaiwar (supra), the Division Bench of this Court in para - 5 and 6 has held as under :-

5.After hearing the learned counsel for the parties, it is clear that in the instant case fair procedure has not been adopted. Proceedings under section 40 of the Adhiniyam of 1993 was initiated by issuance of show cause notice dated 16-5-2006 by the SDO. No doubt about it that earlier a complaint was filed on 27-3-2006 in which the enquiry was conducted by the CEO but that was not bipartite and regular enquiry. Statements of certain witnesses were recorded, which have formed the basis of removal of the petitioner from the post of Sarpanch. Admittedly opportunity of cross-examination was not afforded to the petitioner on the witnesses who were examined by the CEO, Janpad Panchayat, Balaghat while conducting the enquiry into the complaint dated 27-3-2006. In the proceedings under section 40 of the Adhiniyam,1993 none of the witnesses whose statements were recorded by the Enquiry Officer, were examined. Opportunity of cross-examination was also not afforded to the petitioner. Even complainant was not examined. Opportunity to adduce the evidence was also not afforded to the petitioner.

6.This Court in Kailash Kumar Parmanand Dangi v. State of M.P, 1999 (2), MPLJ 722 has 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:-

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 upon 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) JLJ303, 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, 1991 Supp (1) SCC 600 : AIR 1991 SC101 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 v. State of M.P,2004 (4) MPLJ 6, this Court has laid down that copy of the enquiry report has to be furnished. In Mango Bai v. State of M.P, 2003 (2) MPLJ 112, this Court has laid down thus:

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 his 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 aright 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.

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 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."

As per this judgment, before removing the Sarpanch from his office, he should be given an opportunity to cross-examine the witness.

So far as the availability of alternative remedy is concerned, in the case of Shridhar Dwivedi (supra) the Court has held that, availability of alternative remedy is not absolute bar in case of patent violation of law or statutory provision.

Thus, in view of the aforesaid fact and circumstances of the case, the present petition is allowed and impugned order dated 26/06/2019 is, hereby, set aside.

No order as to costs.