IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.4318 OF 2011 RAJA RAM PASWAN VILLAGE KANHI BIGHA, POLICE STATION HILSA, NALANDA. VERSUS 1. THE STATE OF BIHAR 2. PRINCIPAL SECRETARY DEPT OF PANCHAYATI RAJ, GOVERNMENT OF BIHAR 3. DIRECTOR, DEPT OF PANCHAYATI RAJ, GOVERNMENT OF BIHAR 4. DEPUTY DIRECTOR ELECTION DEPT OF PANCHAYATI RAJ, GOVERNMENT OF BIHAR 5. ANUSHRAWAN PADHADHIKARI, DEPT OF PANCHAYATI RAJ, GOVERNMENT OF BIHAR 6. DISTRICT MAGISTRATE NALANDA 7. DISTRICT PANCHAYATI RAJ OFFICER, NALANDA AT BIHARSHARIF. ----------- FOR THE PETITIONER :- MR. AJAY KR.THAKUR FOR THE STATE : - MR M.N.HUDA KHAN, SC 18 FOR THE INTERVENOR RESPONDENT :- RAJENDRA NARAIN. ------------ 6 21.07.2011. The petitioner prays for setting aside order as contained in Memo no. 945 dated 10.2.2011 issued under the signature of Principal Secretary, Department of Panchayti Raj, Government of Bihar by which he was removed from the post of Mukhia u/s 18(5) of the Bihar Gram Panchayat Raj Act, 2006 (hereinafter referred to as the Act). The petitioner was elected as Mukhia of Bara Gram Panchayat situated within Hilsa block in the district of Nalanda. A show cause was issued in respect of alleged misappropriation of Rs. 1,12,517/- committed in implementation of NREGA scheme nos. 1/2006-07, 3/2006-07, 3/2006-07 & 16/2006-07. It was alleged in the show cause that the petitioner and the Panchayat Sevak made excess withdrawal of Rs.1,12,517/- in execution of the schemes. 2 The District Magistrate, Nalanda being dissatisfied with the show cause of the petitioner made recommendations to the Government for taking action against him under section 18(5) of the Act. Consequent thereto, the Panchayati Raj Department, Government of Bihar issued show-cause notice to the petitioner on 8.4.2009. The petitioner made his reply on 5.9.2009. The Government not being satisfied with the show cause passed order dated 10.2.2011 contained in Memo no. 54 removing the petitioner from the post of Mukhia u/s 18(5) of the Act. Mr Ajay Kumar Thakur, submits that after the petitioner gave his reply to the show cause, the Government sought comments on it from the District Magistrate. He further submits that the copy of the comments was not provided to the petitioner. He asserts that apart from his show cause, comments of the District Magistrate, Nalanda were also taken into considerations while passing the impugned order. Learned counsel submits that a copy of the comments of the District Magistrate was not provided to him. Besides this it was the Panchayat Sevak who deposited the excess amount. The petitioner never acknowledged his guilt. He submits that for alleged misappropriation, a criminal case was instituted in which he has been acquitted and no appeal has been carried to the higher court. 3 Learned counsel has relied upon the decisions reported in case of Indu Devi Vs. State of Bihar and others, 2011(2) PLJR 681 as well as case of Vijay Singh Vs. State of Bihar, page 1115 of the same volume in support of his contentions. The State has filed detailed counter affidavit. Mr M.N.H. Khan appearing for the State submits that reasonable opportunity in terms of section 18(5) of the Act was provided to the petitioner to meet the charges levelled against him. He submits that one of the accused, deposited the excess amount that was spent in the scheme. He submits that where the guilt is acknowledged by the accused, then niceties of the departmental proceedings are not of much consequence. In support of the submissions, learned counsel has relied upon order dated 7.2.2011, passed in C.W.J.C.No. 923/2011 in case of Arshizzaman Vs. State of Bihar. He submits that by virtue of power conferred u/s 152 of the amended Rules 2007, Government in the Department of Panchayati Raj vide notification dated 26.8.2008 empowered the District Magistrate to make an enquiry. Learned counsel thus submits that there is no illegality if the District Magistrate initially asked for a show cause from the Mukhia and thereafter made his recommendations to the Government for taking action under section 18(5) of the Act. 4 An intervenor petition bearing I.A.No. 4318/2011 has been filed on behalf of Ranjeet Chouhan for being impleaded as an intervenor respondent. It would appear from the writ petition that the petitioner has challenged the impugned order of removal passed by the Government. He has not sought for any relief against the intervenor respondent, as such, I.A.No.4022 of 2011 is disallowed. The petitioner has assailed the impugned order dated 10.2.2011 passed u/s 18(5) of the Act by the Government on various grounds. First ground taken by the petitioner is that the comments made by the District Magistrate were not provided to him. It appears from the pleadings that on the recommendation of the District Magistrate, Nalanda, the Government asked show cause. Thereafter, the petitioner made his reply. After receiving the reply from the petitioner, Government asked comments of the District Magistrate, Nalanda. The counter affidavit no where controverts the stand of the petitioner that the comments of the District Magistrate were not provided to the petitioner. It appears from the impugned order that the Government passed the same after considering both the show cause filed by the petitioner and the comments of the District Magistrate. Section 18(5) of the Act provides that the Mukhia and Up-Mukhia should be provided 5 reasonable opportunity for making their explanation in a proceeding of removal. Non-supply of comments of the District Magistrate relied upon by the Government in passing the impugned order, amounts to denial of reasonable opportunity under section 18(5) of the Act. The view of mine finds support from decision rendered in case of Indu Devi & Vijay Singh (Supra). In backdrop of aforesaid discussions, I hold that the petitioner was deprived of the reasonable opportunity to meet the show-cause issued by the Government initiating proceeding u/s 18(5) of the Act. The impugned order dated 10.2.2011 has to go and is accordingly set aside. As the petitioner has succeeded on this point alone, I need not consider other points raised by him, I remit the matter to the Government to proceed against him afresh in accordance with law, if it so decides. The writ petition is allowed with the aforesaid observations and directions. Shashi. (Samarendra Pratap Singh, J.)