IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19556 of 2010 RAM NARESH BHARTI . Versus THE STATE OF BIHAR & ORS . ----------- 2/ 25/02/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is the elected Mukhiya of Barari Jagdishpur Gram Panchayat, District- Gopalganj aggrieved by the order dated 6.10.2010 of the Principal Secretary, Department of Panchayati Raj unseating him from that post. A show cause notice containing 10 charges was issued to him. He filed his response to the same. Comments were called for from the District Magistrate and the final order was then passed. The Court does not consider it necessary to go into issues of the nature of the charges whether they connote misconduct or not etc. as the writ petition can be disposed off on another ground. If the petitioner filed his reply to the show cause, the Principal Secretary called for the comments of the District Magistrate on the cause shown, there can be no infirmity in the decision making process till this stage. Whether the petitioner would have been entitled to be served a copy of the comments furnished by the District Magistrate with an opportunity to rebut 2 the same is also left open. But, after the materials by way of the charges, the cause shown, the comments of the District Magistrate were all placed before the Principal Secretary, being the repository of statutory powers with drastic consequences for the petitioner, an elected person, he was required to exercise his independent mind by displaying consideration to the charges, the defence, the evidence, a brief discussion of what was passing his mind balancing issues, to arrive at a reasoned conclusion to his satisfaction transparent as a glass to facilitate judicial review. Section-18(5) of the Bihar Panchayat Ran Act, 2006 provides that the Government may, after giving reasonable opportunity, remove the Mukhiya from the office. The power is of the Government to be exercised by the Government and not at the dictates of the District Magistrate. A reasoned order is a facet of “reasonable opportunity” provided for under Section-18(5) of the Act. The impugned order with respect to the charges states that the District Magistrate had opined that the cause shown by the petitioner was not acceptable except on four charges. An abrupt conclusion has then been arrived at by the statutory 3 authority that the remaining charges stood proved. The impugned order suffers from complete abdication of statutory powers by the Principal Secretary acting on the dictates and opinion of the District Magistrate. Reasons, the heart and soul of an order and the ultimate control on arbitrariness. The order is therefore unsustainable. Considering the nature of the power conferred and the consequences that ensue the caution that was required to be exercised stands settled in AIR 2001 S.C. 2524 ( Tarlochan Dev Sharma Vs. State of Punjab ) at paragraph-15 of the judgement which reads as follows:- “15. In the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja (1995) 5 SCC 302 : (1995 AIR SCW 3543 : AIR 1995 SC 2390), this Court has held that a statutory authority vested with Jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure 4 to exercise discretion altogether. Observations of this Court in the Purtabpur Company Ltd., AIR 1970 SC 1896, are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal Judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under S. 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under S. 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue.” The order dated 6.10.2010 is set aside. The application is allowed. KC ( Navin Sinha, J.)