HIGH COURT OF CHHATTISGARH‘ BILASPUR Single Bh enc: Hon’ble Shri Sunil Kumar Sinha, J. w.P.(C) No. 6354 of 2009 Smt. Shail Singh Parihar Vs. State of Chhattisgarh & Others JUDGMENT WSW—2p /# CA—gAA‘MSwD Post for Judgment : 13/04/2010 7,3'ovvlo Sd/— Sunil Kumar Sinha Judge AFK HIGH COURT OF CHHATTISGARH, BILASPUR Single Bench: Hon’ble Shri Sunil Kumar Sinha, J. W.P.(C) No. 6354 of 2009 Smt. Shail Singh Parihar, wife of Shri Ram Pratap Singh Parihar, aged about 49 years, R/o Village Tedhadaura, Tahsil Mungeli, District Bilaspur (C.G.) PETITIONER Versus 1. State of Chhattisgarh through RESPONDENTS Secretary, Agriculture Department, DKS Bhavan, Raipur (C.G.) 2. Managing Director, Chhattisgarh State Krishi Vipnan Board, Beej Bhavan, In front of Chhattisgarh Hotel, Ravi Gram, Teiebandha, Raipur (C.G.) 3. Shri Mahendra Singh Savanni, Deputy Director, Mandi Board, Regionai Office, near Pratap Chowk, Bilaspur (C.G.) 4.- Shri R.K. Gupta, Assistant Accounts Ofticer, Office of Deputy Director, Mandi Board, Regionai Office, near Pratap Chowk; Biiaspur (C.G.) 5. ShriJanak Ram Maravi, Member Krishi Upaj Mandi, Mungeli, District Biiaspur, R/o Village Bagbudwa, Tahsil Mungeii, District Biiaspur (C.G.) M (Writ Petition under Article 226/227 of the Constitution of India) Appearance: Mr. K.A. Ansari, SeniorAdvocate with Mr. M.K. Bhaduri, Mr. Vipin Singh & Mr. A.S. Ansari, Advocates for the petitioner. Mr. Kishore Bhaduri, Additionai AdvocateGeneral with Mr. A.S. Kachhwaha, Deputy Advocate General for respondents 1 to 4. Mr. Ashish Shrivastava, Advocate for respondent No.5. 2 W.P.(C) No. 6354 of 2009 A JUDGMENT SUNIL KUMAR SINHA, J. (1) Petitioner—ShaH Singh Parihar has flled this Writ petition challenging validity of order .dated 26.10.2009 (Annexure—P/25) passed by the Managing Director, Chhattisgarh State Krishi Vipnan Board‘ Raipur (CG) respondent No.2, whereby, in exercise of powers conferred u/s 55 (2) of Chhattisgarh Krishi Upaj Mandi Adhiniyam 1972 (hereinafter referred to as Mandi Adhiniyam, 1972/Mandi Ahiniyam), the petitioner has been removed from the post of Chairman, Krishi Upaj Mandi Samiti, Mungeli and has been declared to be in-eligible for re-eiection during the reminder of her term of office. ‘J/ (2) The facts, briefly stated, are as under:- The petitioner was an elected Chairman of Krishi Upaj Mandi Samiti, Mungeli. The elections were held on 20.1.2006 and the results were declared on 24.1.2006. On a complaint made by respondent No.5, a preliminary inquiry was conducted against the petitioner and a show-cause notice dated 25.9.2009, u/s 55 (2) of Chhattisgarh Krishi Upaj Mandi Adhiniyam, 1972, was issued against her. It was alleged that the petitioner misused the Scorpio vehicle provided to Mandi Samiti, Mungeli as she used it for her personal purpose without following the directions issued, time to time, in this regard. Following is the gist of the‘show—cause notice issued to the petitioner with details of allegations made against her:- W ah sh Houo mtrra a 113i W/it‘d/s/W/isrg ititrra W 27111991 $Wus6dw sawma‘wwmmwwmaww ti q? 0 vJ/ l)? 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ZoN. ._.Em Umwaosmq 313$ ooimzama EmHE Em oamq 2 Em mgm : W‘P.(C) No. 6354 of2009 A Government, whereby sanction was given as an exceptional case for purchase of Scorpio Jeep, it was clearly mentioned that the vehicle is being purchased for use by the Chairman of the Samiti. Giving details regarding allegations made in the show-cause notice, the petitioner contended that she has never violated any circular or guidelines issued by the Mandi Board which was applicable in case of the petitioner. Many documents were filed in support of the contentions raised by the petitioner in her reply. After submission of the reply to the show-cause notice by the petitioner, respondent No.2 sent notice to the petitioner to appear before him for personal hearing on 20.10.2009. As per averments in the writ petition, the petitionr appeared before respondent No.2 on 20.10.2009 along with her counsel. The counsel engaged by the petitioner demanded original file of the case for advancing the arugments. According to the petitioner, respondent No.2 gave a file which was containing photocopies of the documents. The contention of the petitioner is that the photocopies were tailored, therefore, request was made to show the original file including the original report of respondent No.4, but respondent No.2 declined to show the original file to the petitioner or even original report of respondent No.4. When it was insisted, the petitioner was directed to file a written application. The application (Annexure—P/22) was submitted. Thereafter another notice was issued by respondent No.2 for hearing on 22.10.2009. As per avermentsin Para—8.38 of the writ petition, on 22.10.2009, counsel for the petitioner appeared before respondent No.2 and filed an application for fixing the date on 24.10.2009 or 31.10.2009 or 7.11.2009 so that senior counsel may attend the hearing and argue on behalf of the petitioner. The copy of the application has been filed as Annexure-P/24. The petitioner makes allegations that after taking the said applicatiOn, it was told by respondent No.2 that the decision of the application will be communicated to the petitioner, however, instead of accepting the request made in the application dated 22.10.2009, respondent No.2 passed the / Wb 6 W.P.(C) N0. 6354 0f2009 ; impugned order on 26.10.2009 removing the petitioner from the post of Chairman of Mandi Samiti. (3) Reply to the writ petition has been filed by the respondents. in reference to the above averments made by the petitioner vide Paras 8.34 to 8.39 of the writ petition, respondents 2, 3 & 4 tiled their following reply :- “(XXV) REPLY AS TO PARAS 8.34 TO 8.39:- The contents of these paragraphs of the petition, are narration of the fact regarding the enquiry, therefore, these are all matters of record. The Answering Respondents file the copies of order sheet as ANNEXURE R-2l4, which would show that, enough hearing opportunities were given to the petitioner, but the petitioner had some more or other sought adjournment on every hearing. It is beyond the service jurisprudence to interpret the stretch of hearing opportunity as an opportunity to the satisfaction of the delinquent, therefore, the petitioner is harping on hearing opportunity.” (4) Mr. K.A. Ansari, learned senior counsel appearing on behalf of the petitioner raised two fold arguments. Firstly, he argued that no proper opportunity of hearing was awarded to the petitioner. The petitioner was an elected Chairman through democratic process, therefore, before passing an order of removal u/s 55 (2) of the Mandi Adhiniyam strict compliance of principles of natural justice was required: Secondly, he_ argued that respondent No.2, has not recorded his own finding on the allegations/charges leveled against the petitioner in the show-cause notice. He has simply relied on the findings recorded by respondent No.4 in the preliminary inquiry conducted behind the back of the petitioner, that 7 W.P.(C) N0. 6354 of 2009 W too without assigning any reason, therefore, the order of removal vitiates on merits also. (5) On the other hand, Mr. Kishorer Bhaduri, learned Additional Advocate General appearing on behalf of respondents 1 to 4 and Mr. Ashish Shrivastava, learned counsel appearing on behalf of respondent No.5, opposed these arguments and supported the order passed by respondent No.2. They argued that proper opportunity of hearing was awarded to the petitioner and it was a case of proved misconduct, therefore, respondent No.2 has rightly passed an order of removal of the petitioner. l have heard the learned counsel for the parties at length and have (5) also perused the records of the writ petition. (7) For appreciation of the rival contentions raised before this Court, firstly, we shall look into the provisions‘of Section 55 (2) of the Mandi Adhiniyam 1972 which reads as under:- "55 (2) The Managing Director may remove any Chairman or Vice-Chairman of a Market Committee from his office, for misconduct, or neglect of 0r incapacity to perform his duty or for being persistently remiss in the discharge of his duties and on such removal the Chairman or Vice—Chairman, as the case may be, shall not be eligible for re-election as Chairman or Vice—Chairman during the remainder of his term of office as member of Market Committee: Provided that no order of removal shall be passed unless the Chairman or Vice—Chairman, as the case may be, has been given a reasonable opportunity of showing cause why such order should not be passed." l (8) A perusal of the above provisions make it clear that no order of removal shall be passed unless the concerned person has been given a 8 ‘W.P.(C) No. 6354 of 2009 D? ; reasonable opportunity of showing cause why such order should not be passed. (9) In Tarlochan Dev Sharma —Vs- State of Punjab and Others, (2001) 6 SCC 260, the Supreme Court while dealing with the removal of the President of the Council under the Punjab Municipal Act of 1911, held that “In a democracy governed by the rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set-aside by the prescribed procedure known to law. The Supreme Court said that removal from such an office is a serious matter. It curtails statutory‘term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held”. Relying the aforesaid judgment, the Supreme Court held in the matter of Sharda Kailash Mittal —Vs- State of Madhya Pradesh and Others, (2010) 2 SCC 319 that holder of office being a democratically elected ofhcer, his removal from office which is an extreme step must be resorted to only in grave and exceptional circumstances and not for minor irregularities. lt further reiterated that action ofrremoval casts a serious stigma on personal and public life of office-bearer concerned and it may even result in disqualification to hold office for next terms. In the said case, the Supreme Court was dealing with a matter relating to MP. Municipalities Act 1961. The Supreme Court held that no appeal against the order of removal is envisaged and no sufficient guidelines are provided as to manner in which said power is to be excercised, hence, the provision has to be strictly construed because the holder of the office occupies it by 9 W.P.(C) No. 6354 of 2009 D§ 3 ; election and is deprived of same by an executive order in which electorate has no chance of participation. The exercise of the power, therefore, has serious civil consequences on the status of the office- bearer. (10) What is said in regard to the provisions of MP. Municipaiities Act 1961 relating to removai of the eiected office-bearer, can weli be applied in case on hand and Section 55 (2) of the Mandi Adhiniyam 1972 has to be interpreted in the manner indicatd by the Supreme Court in Sharda’s case. Here also the petitioner was an elected Chairman and her removal was proposed by an executive order to be passed u/s 55 of Adhiniyam 1972) Where-in there is no provision of appeal against an order of removal passed u/s 55 (2) and further no sufficient guidelines are provided as to manner in which the power is to be excercised u/s 55 (2). Therefore, a heavy duty was cast on respondent No.2 to examine the case of the petitioner in accordance with the Rules and circulars and further to pass an order after giving reasonable opportunity to show— cause to the petitioner. (11) Now we shall examine the case on the above principles. So far as reasonable opportunity to show—cause is concerned, we gather form the order—sheets recorded by respondent No.2 that on 22.10.2009 there is an endorsement that Mr. Vipin Singh, Advocate appeared before the said authority and filed an application which was taken on record. Hwoever, we do not find any endorsement or the order relating to the fate of the said application either on the said date or on any subsequent date. It appears that thereafter the matter was taken up on 26.10.2009 and firstly, 10 W.P.(C) No. 6354 of2009 [X ¢ the authority/respondent No.2 wrote‘ that the petitioner after giving reasonabie opportunity, failed to tile satisfactory reply, therefore, on the inquiry report and departmental audit report, the charges leveled against the petitioner are proved and it would be appropriate to remove the petitioner from the post of Chairman, and thereafter the impugned order was passed in the note-sheet/order—sheet in continuation. This shows that respondent No.2 did not dispose of the application tiled on behalf of the petitioner on 22.10.2009 praying adjournment. Even the petitioner or her counsel was never informed that the time prayed for is not being granted to them and necessary order would be passed. In all fairness, either the said application should have been rejected by respondent No.2 on the same date or the petitioner should have been informed that no further time is being granted to her in view of the said application, and then, the matter should have been taken up for passing of the final order u/s 55 (2). The petitioner has made detail pleadings in that behalf in Paras— 8.34 to 8.39 of the writ petition, but‘the respondents have not controverted those pleadings categorically and have submitted a vague reply (mentioned supra) with reference to those pleadings: (12) The word reasonable‘opportunity used in proviso to sub-section (2) of Section 55 makes it clear that the opportunity to be given to the elected officer is not a mere formality or technical fulfillment to pass ‘an order of removal but that has to be a real opportunity so that the elected officer gets a chance to rebut the allegations made against him/her. That is more so because no sufficient guidelines are provided as to manner in which the power u/s 55 (2) has to be excercised. It may not escape out of our 11 W.P.(C) No. 6354 0f2009 ; mind that a finality is attached to the order passed u/s 55 (2) of Adhiniyam 1972 and no appeal is provided against the said order. (13) After considering the entire facts and circumstances of the case‘ it appears that the petitioner was not given reasonable opportunity of showing-cause as to why she should not be removed from the post of Chairman u/s 55 (2) of Mandi Adhiniyam 1972 and the entire proceeding 1“ has taken place in haste-hurry manner. Therefore, i deem it appropriate to set-aside the order and direct the respondent authority to hear the petitioner afresh before a decision in the matter. (14) Since the matter is being remanded to the concerned authority for fresh decision, i do not deem it appropriate to comment upon the merits of the order as argUed by learned counsel for the petitioner. (15) For the foregoing reasons, the petition is allowed. The impugned order dated 26.10.2009 (Annexure-P/25) passed by respondent No.2 is set—aside. Since respondent No.2 had decided to call upon the petitioner ‘ for personal hearing in the matter, it is'directed that respondent No.2 shall give a fresh opportunity of personal hearing to the petitioner on a date to be fixed by the said authority before passing an order in the matter. yea s‘mha (1 6) No order as to cost. Sdl- S“ni\ Kumar Judge vatti