Pappu Lal Kori vs State of M.P. and Others

Sheel Nagu, J.—The present petition under Article 226 of the Constitution of India assails the order of removal passed u/s 40 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for brevity "Adhiniyam of 1993") by the prescribed authority and SDO (Revenue) Ambah, District Morena removing the petitioner from the post of Sarpanch, Gram Panchayat Mahua, Tahsil Porsa, District Morena. Learned counsel for rival parties are heard.

Learned counsel for petitioner in support of the challenge to the order of removal contends that due and sufficient opportunity contemplated u/s 40 of the Adhiniyam of 1993 has been denied inasmuch as denying the right to cross-examine the witnesses produced in support of the charges against the petitioner. It is further contended that the enquiry culminating into removal was vitiated as having been concluded on 02.11.2012 (order of removal), which is after 90 days of the issuance of show cause notice dated 01.12.2011. Reliance has been placed on the decision of the Division Bench of this Court in the cases of Smt. Manita Jaiwar Vs. State of M.P. and Others, and Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others, .

Per contra, the learned counsel for respondents/State and respondent No. 7 contend that the charges against the petitioner were serious enough involving financial irregularities and were found established after conduction of enquiry after affording due and sufficient opportunity to the petitioner. It is contended that after submission of the affidavits on behalf of the complainant and his witnesses in support of the charges, when the complainant and his witnesses were made available for being cross-examined on 17.09.2012, the petitioner remained absent leading to the prescribed authority proceeding ex parte against the petitioner. Thus, it is contended by the respondents that opportunity of cross-examining the witnesses and complainant despite having been afforded was not availed by the petitioner. It is further contended that spot inspection was conducted by the Panchayat & Social Education Organizer, Janpad Panchayat, Porsa leading to submission of an enquiry report to the prescribed authority, i.e., SDO (Revenue).

Respondents do not deny that the copy of the enquiry report of the said official prepared on the basis of the instructions of prescribed authority was not supplied to the petitioner prior to passing of the order of removal.

In the conspectus of the abovesaid facts and circumstances attending the instant case, this Court has no hesitation to hold that though reasonable opportunity was afforded to the petitioner as regards grant of opportunity to cross-examine the complainant and his witnesses, but on the other hand reasonable opportunity was denied by failing to supply the enquiry report submitted by the Panchayat & Social Education Organizer, Janpad Panchayat, Porsa.

It is not disputed by the learned counsel appearing for respondents that the enquiry report has been relied upon by the prescribed authority to form an opinion against the petitioner while deciding on the question of removal. A perusal of the impugned order of removal dated 02.11.2012 (Annexure P/2) in para 3 categorically mentions that spot inspection was conducted by the Panchayat & Social Education Organizer, Janpad Panchayat, Porsa and the enquiry report was submitted, contents of which have been reproduced in extenso in para 3 of the order of removal.

The enquiry report submitted by the Panchayat & Social Education Organizer, Janpad Panchayat, Porsa appears to be indisputably inculpatory in nature as regards the petitioner. This material adverse to the interest of petitioner was used by the prescribed authority to form an opinion against the petitioner while passing the order of removal.

In view of the above, this Court finds that the decision making process preceding the order of removal is vitiated by the non-affording of inculpatory inquiry report prepared by the Panchayat & Social Education Organizer, Janpad Panchayat, Porsa, prior to passing of the order of removal. Consequently, the impugned order of removal is vitiated. The writ petition is allowed to the extent indicated below:-

Impugned order of removal of the petitioner from the office of Sarpanch, Gram Panchayat Mahua, Janpad Panchayat Porsa, District Morena is set aside;

The appellate order of Collector, Morena dated 18.02.2013 as a necessary consequence is also set aside;

The prescribed authority/SDO (Revenue) Ambah, District Morena is directed to supply the copy of the enquiry report prepared by the Panchayat & Social Education Organizer, Janpad Panchayat, Porsa to the petitioner and after affording a reasonable opportunity to the petitioner to respond to the said enquiry report of preferring a written representation, pass suitable order u/s 40 of the Adhiniyam of 1993 after taking into account the response of the petitioner;

The proceedings in question, after affording opportunity as directed above, be concluded as expeditiously as possible but preferably within a period of 60 days from the date of receipt of a copy of this order;

No order as to costs.