Smt. Pooja Rathore v. State Of Chhattisgarh
AFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (C) No. 826 of 2018 Smt. Pooja Rathore, W/o Shri Mukesh Kumar Rathore, Aged about-32 years, Sarpanch Gram Panchayat Seoni, Janpad Panchayat Baloda, R/o Village & Post Seoni, Police Station and Tahsil Champa, Civil & Revenue District Janjgir-Champa (C.G.) ---- Petitioner
Versus
1. State of Chhattisgarh, Through the Secretary, Panchayat & Rural Development Department, Government of Chhattisgarh, Mahanadi Bhawan, New Raipur, Civil & Revenue District- Raipur (C.G.)
2. Collector Janjgir, Civil & Revenue District- Janjgir Champa (C.G.)
3. Sub-Divisional Officer (Revenue) Champa, Civil & Revenue District Janjgir Champa (C.G.)
4. Shri Ramratan Rathore, S/o Late Shri Butariram Rathore, aged about 35 years, R/o Village & Post Seoni, Police Station and Tahsil Champa, Civil & Revenue Distt- Janjgir Champa (C.G.) ---- Respondents --------------------------------------------------------------------------------------------------------------- For Petitioner : Shri K.A. Ansari, Senior Advocate assisted by Shri Ramesh Nayak, Advocate.
For Respondents No. 1 to 3/State : Shri Ratan Pusty, Govt. Advocate. For Respondent No. 4 : Shri Ashutosh Shukla, Advocate. --------------------------------------------------------------------------------------------------------------- Order On Board 10/04/2018 (1) The petitioner was elected as Sarpanch of Gram Panchayat Seoni. On the complaint of respondent No. 4- Shri Ramrath Rathore, proceeding under Section 40 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (henceforth "Adhiniyam, 1993") was initiated against the petitioner, in which notice was issued to the petitioner,
which was replied and after reply is filed, the case was heard and the impugned order dated 09.03.2018 has been passed removing her from the post of Sarpanch, against which instant writ petition has been filed questioning the same. (2) Shri K.A. Ansari, learned Senior counsel appearing for the petitioner would submit that without complying provisions of Section 40 of the Adhiniyam, 1993, the petitioner has been removed from the post of Sarpanch without making any enquiry as contemplated under Section 40(1) of the Act of 1993 and unless enquiry is made by giving a reasonable opportunity of being heard as provided in proviso to Section 40(1) of the Act of 1993, she cannot be removed from service as such, the order passed by the respondent No. 3- Sub Divisional Officer (Revenue), Champa deserves to be set aside.
(3) On the other hand, learned counsel for the respondents would submit that petitioner has an alternative remedy of raising dispute under Section 21(4) of the Adhiniyam, 1993. Even otherwise, enquiry has been held by the Sub Divisional Officer (Revenue) and notice has been issued, which was replied by the petitioner and, thereafter, impugned order has been passed, as such, no grievance has been raised by the petitioner for making enquiry, and, therefore, the order impugned is strictly in accordance with law, which does not call for any interference by this Court in the instant writ petition.
(4) I have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove and also went through the record with utmost circumspection.
(5) The instant writ petition has been entertained on 27th March, 2018 and the
affidavit was directed to be filed by the Sub Divisional Officer as to whether the enquiry was conducted or not. The affidavit has been filed along with the copy of order, which clearly demonstrates that though the opportunity to file reply was afforded to the petitioner but no enquiry has been conducted as contemplated under proviso to sub-Section (1) of Section 40 of the Adhiniyam of 1993 and petitioner has been removed in violation of principles of natural justice, therefore, it is a case where the writ petition has rightly been entertained and the objection of alternative remedy raised by respondents in this regard is hereby overruled. (6) Section 40 (1) of the Act of 1993 provides as under: - "40.
Removal of office bearers of Panchayat.-(1) The State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time, remove an office bearer- (a) if he has been guilty of misconduct in the discharge of his duties; or (b) if his continuance in office is undesirable in the interest of the public"
Provided that no person shall be removed unless he has been given an opportunity to show cause why he should not be removed from his office.
(7) A studied glance of the aforesaid provision would show that the prescribed authority in a proceeding under Section 40 of the Act of 1993 is required to make enquiry as it may deem fit to make at any time and as such, before passing an order of removal, enquiry is necessary and opportuntiy to show cause is equally necessary.
(8) Division Bench of the M.P. High Court in the matter of Bansmani v. State of MP and others1, while dealing with removal of President of 1980 JLJ 60
Panchayat under Section 116 of the Madhya Pradesh Panchayats Act, 1962, emphasised the need for supplying the charges and material to provide real opportunity of hearing to person concerned and observed as under: - "While taking action under section 116 of the Panchayats Act, the State Government should not only disclose the charges but also the entire material on which the charges are based to the person concerned so as to afford him real opportunity to show cause against the charges."
(9) In the matter of Kailashkumar v. State of M.P.2, the petitioner was Sarpanch of a Gram Panchayat. A show cause notice was issued to him with certain charges. He submitted his reply to the show notice giving his explanation on each charge. He also requested for time to produce some more documents and adduce oral evidence. But no witness was examined by the Sub Divisional Officer in support of the charges nor the petitioner (therein) was permitted to examine any witness and the impugned order of removal was passed. The M.P.
High Court, following the decision in Bansmani (supra), set aside the order of removal finding that no reasonable opportunity of hearing was granted to the petitioner therein in support of the charges applying the celebrated rule of audi alteram partem holding that enquiry ought to have been made, as the preliminary report submitted by the Block Development Officer has been relied upon and order of removal has been passed. In the aforesaid case (supra) it has also been held that the words employed in sub-section (1) of Section 40 of the Act of 1993, "after such enquiry as it may deem fit to make" would mean an enquiry which is held in the presence of the office-bearer and not behind his back.
evidence. These are the important facets of an enquiry to be held in conformity with the principles of natural justice. It has further been held that it is not the subjective choice of the prescribed authority to get an enquiry 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 enquiry depending upon the facts and circumstances of each case. (10) It is well settled law that removal of elected office-bearer from his office is a serious matter, as disqualification or removal not only affects the particular office-bearer but it affects the entire constituency as well.
Therefore, the law relating to disqualification or removal has to be construed strictly. (See Ravi Yashwant Bhoir v. District Collector, Raigad and others3 and Sadashiv H. Patil v. Vithal D. Teke and others4.) (11) In Ravi Yashwant Bhoir (supra), Their Lordships of the Supreme Court have considered that removal of elected office-bearer from office on the basis of proved misconduct is a quasi judicial proceeding in nature and therefore the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same and observed as under in paragraphs 30, 31 and 32: - "30.
There can also be no quarrel with the settled legal proposition that removal of a duly elected member on the basis of proved misconduct is a quasi-judicial proceeding in nature. [Vide Indian National Congress (I) v. Institute (2012) 4 SCC 407 (2000) 8 SCC 82
of Social Welfare5.] This view stands further fortified by the Constitution Bench judgments of this Court in Bachhitar Singh v. State of Punjab6 and Union of India v. H.C. Goel7. Therefore, the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defence to such an elected office-bearer.
31.
Undoubtedly, any elected official in local selfgovernment has to be put on a higher pedestal as against a government servant. If a temporary government employee cannot be removed on the ground of misconduct without holding a full-fledged inquiry, it is difficult to imagine how an elected office can be removed without holding a full-fledged inquiry.
32.
In service jurisprudence, minor punishment is permissible to be imposed while holding the inquiry as per the procedure prescribed for it but for removal, termination or reduction in rank, a full-fledged inquiry is required otherwise it will be violative of the provisions of Article 311 of the Constitution of India. The case is to be understood in an entirely different context as compared to the government employees, for the reason, that for the removal of the elected officials, a more stringent procedure and standard of proof is required." (12) Likewise in paragraphs 34, 35 and 36 of the judgment rendered in Ravi Yashwant Bhoir (supra), Their Lordships of the Supreme Court further held as under: - "34.
In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office-bearer sought to be removed.
35.
The elected official is accountable to its electorate (2002) 5 SCC 685 : AIR 2002 SC 2158 AIR 1963 SC 395 AIR 1964 SC 364
because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (vide Jyoti Basu v. Debi Ghosal8, Mohan Lal Tripathi v. District Magistrate, Rae Bareily9 and Ram Beti v. District Panchayat Raj Adhikari10). 36.
In view of the above, the law on the issue stands crystallised to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected officebearer but his constituency/electoral college is also deprived of representation by the person of his choice."
(13) In Sadashiv H. Patil (supra), the Supreme Court in para-14 held thus:-- "14.
A finding as to disqualification under the Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with the democratic procedure of constituting a local authority. The consequences befall not only him as an individual but also the constituency represented by him which would cease to be represented on account of his having been disqualified. Looking at the penal consequences flowing from an elected councillor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly. A rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference under Section 7 of the Act."
(14) Though proviso to sub-section (1) of Section 40 of the Act of 1993 only provides that no person shall be removed unless he/she has been given an opportunity to show cause why he/she should not be removed from his/her office, (1982) 1 SCC 691 : AIR 1982 SC 983 (1992) 4 SCC 80 : AIR 1993 SC 2042 10 (1998) 1 SCC 680 : AIR 1998 SC 1222
but it is implicit in this provision that the office-bearer who is sought to be removed will be given a fair hearing and real opportunity to meet the charges levelled against him/her.
(15) Reverting to the facts of the case in hand, it is quite apparent that upon receipt of preliminary enquiry report conducted by the Sub Divisional Officer (Revenue), Champa, the case was registered against the petitioner for removal from the post of Sarpanch on 8.12.2017 and notice was issued to the petitioner which was replied and after getting reply from the petitioner, charges have been levelled against the petitioner and the order of removal was passed on 09.03.2018, but no enquiry with regard to charges was conducted by the Sub Divisional Officer (Revenue) particularly when the charges of embezzlement of the governmental money on the part of the petitioner was alleged.
In order to establish the charges alleged against the petitioner, the Sub Divisional Officer (Revenue) has examined none and no opportunity of hearing much less reasonable opportunity of hearing was granted to the petitioner to refute the said charge. Thus, the order of removal has been passed without following the mandate of Section 40(1) read with its proviso of the Adhiniyam, 1993 and, therefore, principles of natural justice have been followed in its full breach and, as such, order of removal is in teeth of provisions contained in Section 40(1) of the Adhiniyam, 1993.
(16) As a fallout and consequence of the aforesaid discussion, I am of the opinion that the order passed by the Sub Divisional Officer (Revenue) is liable to be and is hereby quashed. However, this will not bar the Sub Divisional Officer (Revenue) to proceed further in accordance with law.
(17) The writ petition is allowed to the extent sketched hereinabove leaving the parties to bear their own costs.
Sd/- (Sanjay K. Agrawal) Judge D/-