Satyaranjan Mine vs State of Chhattisgarh and Others

N.K. Agarwal, J.—With the consent of the parties, the mater is heard finally. 2. The instant petition is directed against the order dated 12-12-2007 (Annexure P-7), passed by the Director, Panchayat, in Revision Case No. 168/A-89/06-07, whereby, the Director, Panchayat has affirmed the order passed by the respondent No. 2, i.e., SIX), Ranker, against the petitioner''s removal from the post of Acting Sarpanch u/s 40 of the Panchayat Raj Adhiniyam, 1993 (for short ''Act, 1993'').

The brief facts of the case are that, on a complaint made by the respondent No. 3 and some other persons, an enquiry was conducted against the petitioner by appointing Enquiry Officer. On 10-8-2006, the Enquiry Officer submitted his enquiry report to the Chief Executive Officer, Janpad Panchayat Koyalibeda and exonerated the petitioner from the charges levelled against him. Thereafter, one more report was submitted by the same Enquiry Officer on the same date, and according to which the charges of misconduct levelled against the petitioner were found correct. Thereafter, show-cause notice dated 21-7-06 was issued to the petitioner by the Prescribed Authority, i.e., Sub Divisional Officer, Revenue, Pakhanjur, Distt. Kanker (for short ''SDO''), levelling the charge of misappropriation of fund, regarding poor quality construction of school building etc. The petitioner filed his reply on 28-7-2006 denying all the charges levelled against him. With regard to charge No. 3, he submitted in his reply that additional school building was constructed in the supervision of Sub Engineer, based on estimate prepare by him and for that payment''s are yet to be made to the contractor. It was further submitted that regarding poor construction, Sub Engineer and Panchayat Inspector enquired into the matter. He being an inexperienced person in this regard, if any mistake has been committed regarding quality construction of school building, then the same shall be corrected.

Thereafter, based on enquiry report, show-cause notice and its reply, based on alleged admission regarding poor construction of school building, the Prescribed Authority, i.e., Sub Division Officer held that charges levelled against the petitioner were proved, and passed the removal order of the petitioner from the post of Acting Sarpanch u/s 40 of the Act, 1993. The said order has been affirmed by the Collector, Kanker in appeal vide order dated 5-12-2006, and also affirmed by the respondent No. 4, i.e., Director, Panchayat, in Revision Case No. 168/A-89/06-07 vide order dated 12-12-2007 (Annexure P-7). Hence this petition.

Shri Anand Kumar Shukla, learned Counsel appearing for the petitioner submits that the impugned order has been passed violating the principles of natural justice in as much as neither proper opportunity of hearing was afforded to the petitioner for putting his case and adducing evidence nor evidence on the Enquiry Officer was recorded, and thus, the impugned order deserves to be set aside. In support of his contention, he placed reliance on judgment of M.P. High Court in case of Kailash Kumar Dangi Vs. State of M.P. and Others, . In the said case, Single Bench of M.P. High Court observed in Para 7 as under:

Removal and disqualification of an office-bearer of a Panchayat u/s 40 of the Act on the ground of misconduct is not less injurious and stigmatic as the removal of a civil servant under Article 311 of the Constitution of" India or a workman under the industrial law. Article 311 also envisages an ''inquiry'' in which the delinquent employee is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The celebrated rule of audi alterant pattern has been incorporated therein. What principles of natural justice should be applied depends upon the facts and circumstances of each case. Broadly stated a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.

Having heard learned Counsel for the parties, having perused the records, I am of the considered opinion that this petition deserves to be allowed on the following grounds:

(i) The words "after such inquiry as it may deem fit to make" in the main part of Section 40 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.

(ii) Admittedly, in the present case, neither evidence of Inquiry Officer was recorded by the Prescribed Authority nor opportunity was granted to the petitioner to adduce his evidence, and therefore, the order has been passed violating the principles of natural justice. Although, notice was issued to the petitioner for which the petitioner has filed his reply, but as the charges levelled against the petitioner were grave in nature, the evidence of Enquiry Officer ought to have been taken in presence of the petitioner by affording opportunity of cross-examination to him, but the same was not done.

(iii) I have perused the reply to show-cause notice regarding charge No. 3. A bare reading of show-cause notice and its reply with regard to charge No. 3 would reveal that the petitioner has not admitted the charge, on the contrary, he tried to explain the said charge levelled against him, and therefore, merely based on alleged admission regarding charge No. 3 in his reply, the SDO was not justified in passing removal order against the petitioner without affording him opportunity of hearing, opportunity of leading evidence and submitting his argument, and therefore, the order passed by the authority suffers from violation of principles of natural justice,

Single Bench of M.P. High Court in case of Smt. Babita Lilhare v. Shri Surendra Rana and Ors. reported in 2004(5) M.P.H.T. 79, observed in Para 7 as under:

It is clear that the SDO has illegally relied upon the preliminary enquiry report. Fair procedure required that to establish the charges against the petitioner witnesses ought to have been examined independently by the SDO in proceedings u/s 40 of the Act, the preliminary enquiry which was conducted in the year 2000 was not part of the proceedings u/s 40 of the Act. When the proceedings u/s 40 of the Act are initiated the witnesses are required to be examined before the SDO and opportunity has to be given to the Sarpanch against whom removal proceedings are taken to cross-examine the witnesses, that has not been done in the instant case. Even the report of the preliminary enquiry has not been supplied to the petitioner and it is clear that during the course of preliminary enquiry witnesses were not cross-examined and that was not proceeding u/s 40 of the Act. SDO committed basic error in asking the petitioner to adduce evidence first to prove innocence the SDO ought to have first recorded evidence of the witnesses who were supposed to prove the charge against the petitioner, if preliminary enquiry was to be used as evidence by the SDO the petitioner ought to have been given the copy of the same and if the statements of the witnesses who were not cross- examined during preliminary inquiry were to be relied upon petitioner ought to have given opportunity to cross-examine then in proceeding u/s 40 of the Act. They ought to have been examined afresh in proceedings u/s 40 and were required to state the facts. Thus, in my opinion when no enquiry has been conducted by the SDO to establish the charges and there is no legal and acceptable evidence to establish the charges against the petitioner and basic procedure adopted is faulty. Removal of petitioner is bad in law. Thus, in my opinion, orders (P-3, P-11 and P-13) are liable to be set aside and are quashed.

In the aforesaid circumstances, I find merit in this petition and it is allowed. The orders dated 4-8-2006 (Annexure P-4), 5-12-2006 (Annexure P-5) and dated 12-12-07 (Annexure P-7) are hereby quashed and the matter is remitted back to the SDO, i.e., Prescribed Authority to proceed in the matter after supplying copy of enquiry report submitted by the Enquiry Officer to the petitioner and the same shall be examined with opportunity of cross-examination to the petitioner. The petitioner be granted one opportunity to submit his evidence, if any, and thereafter, the SDO shall proceed to decide the matter in accordance with law.

As the matter was of the year 2006 and the petitioner was working as Acting Sarpanch at that time, so if any regular Sarpanch has not been appointed till now, then the petitioner shall be reinstated as Acting Sarpanch, Gram Panchayat, Baikunthpur, Block Koyalibeda, Tehsil Pakhanjur, Distt. Kanker, till the decision of Prescribed Authority, i.e., SDO or till the appointment of regular Sarpanch in accordance with law, whichever is earlier. No order as to costs.