Phulvasiya Pal vs State of M.P.

K.K. Trivedi, J.—The grievance of the petitioner in this petition under Article 226 of the Constitution of India is two folds; one that the order impugned has been issued without affording full opportunity of defence to the petitioner in appropriate manner and the other one is that the order dated 24.04.2013 passed by the Sub Divisional Officer and the Prescribed Authority, Hanumana District, Rewa, is beyond the jurisdiction as the said order is not passed within the time prescribed under the provisions of Section 40 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as "Act").

It is contended by learned counsel for the petitioner that a show cause notice was issued to the petitioner for alleged misconduct on 31.05.2012 and a date was fixed for hearing on 14.06.2012. Though reply was filed by the petitioner, but no enquiry was conducted in that respect in appropriate manner by affording an opportunity to cross-examine the witnesses to the petitioner, by the Prescribed Authority and the order was passed on 24.04.2013 removing the petitioner from the post of Sarpanch and directing that the action be taken against the concerned Secretary of the Gram Panchayat under Section 69(1) and Section 92 of the Act against the petitioner and the said Secretary. Since the order was not passed by the competent Prescribed Authority within the time prescribed under Section 40 of the Act, the order was beyond the jurisdiction of the Prescribed Authority.

It is contended that an appeal was preferred by the petitioner before the Additional Collector, which appeal was ultimately dismissed on 06.08.2014, therefore, a revision was filed by the petitioner before the Additional Commissioner Rewa, Division Rewa. An interim stay was granted to the petitioner but ultimately on 12.08.2014, the revision was dismissed on merits. On a prayer made by the petitioner the order passed by the Additional Commissioner was put in abeyance, which order was in force when the writ petition was filed before this Court. It is contended that while entertaining the writ petition, an interim stay was granted to the petitioner on 10.09.2014, and this is how the petitioner is continuing on the post of Sarpanch. Thus it is contended that the orders passed by the Prescribed Authority as also by the Appellate Authority are bad in law and are liable to be set aside. For the said purposes, the reliance is placed in the cases of Dhanwanti Vs. State of M.P. and others, and Smt. Manita Jaiwar Vs. State of M.P. and Others, .

Per contra, it is contended by learned counsel appearing for the State that enquiry was conducted against the petitioner and a report was submitted by the Chief Executive Officer of the Janpad Panchayat, Hanumana, indicating that financial irregularities were committed by the petitioner. Only on the basis of such report action was rightly taken by the Prescribed Authority against the petitioner and opportunity of hearing was given. In view of the finding recorded by the Prescribed Authority, there was no case made out to interfere in the order passed by the Prescribed Authority and, therefore, rightly the appeal and revision of the petitioner were dismissed by the Appellate and Revisional Authority. It is contended that in view of the aforesaid, interference in the order passed by the Prescribed Authority in exercise of power of judicial review of the said order by this Court, is not required.

It is contended by learned counsel appearing for the respondent No. 6 that the petitioner has committed serious financial irregularities and, therefore, rightly the action was taken against her and in view of the aforesaid circumstances, interference in the order impugned is not called for.

After hearing learned counsel for the parties at length and after going through the records as also the Division Bench decision in the case of Dhanwanti Vs. State of M.P. and others (supra), it is clear that the order was passed by the Sub Divisional Officer against the petitioner beyond the period prescribed under the provisions of the Act and as such the Prescribed Authority was having no jurisdiction to pass such an order. Specifically when a mandatory provision is made for completing the enquiry within the prescribed period, no scope is left for extension of time, except as set out in the said provisions, the Prescribed Authority was having no jurisdiction to pass the order against the petitioner. Admittedly, the show cause notice was issued to the petitioner on 31.05.2012 and the enquiry was to be completed within a period of 90 days. At the best, the Prescribed Authority could have asked for extension of said limit by 30 more days by making appropriate proposal before the next senior officer in terms of the proviso added to Section 40 of the Act. However, there is nothing on record nor anything is reflected from the order impugned that the time was extended by any competent authority. Even otherwise, if there was extension it could not be upto 24.04.2013 and, therefore, the competent authority was having no jurisdiction to pass any order against the petitioner in the proceeding so initiated. At the best, the competent authority could have issued another show cause notice after closing the proceeding earlier initiated and to complete the proceeding within the time prescribed under the provisions of Section 40 of the Act.

In view of the aforesaid, the order impugned cannot be sustained. Accordingly, the writ petition is allowed. The order dated 24.04.2013 passed by the Sub Divisional Officer, Hanumana, is hereby quashed. All other orders passed in consequence of the said order, in appeal and revision of the petitioner stand quashed. However, the Sub Divisional Officer, would be obliged to initiate the proceeding against the petitioner afresh by issuing show cause notice on the basis of the report received and to complete the enquiry under Section 40 of the Act within the time stipulated. Since the petitioner is represented before this Court and undertakes not to indulgent herself in any dilatory tactics, the enquiry be completed within the time stipulated and a fresh order be passed after giving full opportunity to the petitioner including the opportunity to cross-examine the witnesses. This order be strictly complied with in view of the fact that charges of financial irregularities are levelled against the petitioner.

In view of the aforesaid, the writ petition is allowed and disposed of finally to the extent indicated herein above. However, there shall be no order as to costs.