IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1969 of 2011 SMT. USHA DEVI . Versus THE STATE OF BIHAR & ORS . For the petitioner: Mr. Vindhya Keshri Kumar, Sr. Adv. For the State : Mr. A.K. Upadhyay, Adv. ----------- 3/ 18/03/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is stated to be the Mukhiya of Badrabad Gram Panchayat, Block- Ekangarsarai, District-Nalanda. She is aggrieved by the order dated 14.1.2011 passed by the Principal Secretary, Panchayati Raj, unseating her from the post in exercise of powers under Section-18(5) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act). Learned counsel for the petitioner submits that there were three charges against the petitioner:- (A) Irregularities in appointment of Panchayat Teachers; (B) Irregularities in payment of stipend to students and to Shikshamitras; and (C) Demanding Rs.600 to 700/- for marriage registration. The S.D.O. enquired into charges-B and C. From paragraph Nos.8 to 10 of his report dated 8.3.2010 at Annexure-1 to the writ application it is more than apparent that there was no finding arrived at 2 against the petitioner, but only a speculative consideration left that there were middlemen operating. Even the name of the person who allegedly made the demand has not been disclosed by the person making the allegations. Insofar as charge-A is concerned, it at best was an irregularity with regard to the joining of one empanelled candidate who is alleged to have been given an extended time to join. The petitioner was issued a show cause notice by the Deputy Director (Election) Panchayat Raj and not by the Principal Secretary, Panchayati Raj. The final order is unreasoned, cryptic and does not display any application of mind to the allegations, the defence leading to a reasoned conclusion. Learned counsel for the State from his counter affidavit submits that an enquiry has been held, a show cause notice given, the reply considered and therefore merely because a different view may be possible on the materials, this Court may not interfere in view of the judgement of this Court in C.W.J.C. No.9374/10. Learned counsel for the State is unable to satisfy the Court that the show cause notice dated 28.4.2010 leading to the final order dated 14.1.2011 has been issued by the statutory authority, the 3 Secretary, Panchayati Raj. If the Statute prescribes the authority, i.e. the State Government to issue the show cause notice under Section-18(5) of the Act the notice could have been issued by the statutory authority alone and by no person on its behalf. The contention of the learned counsel for the State that no prejudice has been caused to the petitioner, is not sustainable where violation of statutory provisions is alleged as there can be no estoppel against the Statute. Chapter-8 dealing with the miscellaneous provisions of the Bihar Panchayati Raj Act, 2006 does not contain any provision for delegation of such powers by the State Government. Therefore, any executive orders that the Secretary, Panchayati Raj may have given to the Deputy Director in teeth of the statutory provisions is of no consequence. The show cause notice itself was bad in law. The Supreme Court in AIR 2001 S.C. 2524 (Tarlochan Sharma Vs. State of Punjab) has noticed the status of an elected person like a Mukhiya and the manner in which they are to be dealt with. The consequences that ensue under an order in exercise of executive powers has been dealt with in the following terms at paragraph-6:- “6. In a democracy governed by rule of law, once elected to an office in a democratic 4 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 a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge and duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the 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. Therefore, a case of availability of a ground squarely falling within S.22 of the Act must be clearly made out.” Similar view has been expressed in (2010) 2 SCC 319 (Sharda Kailash Mittal v. State of M.P.) at paragraph Nos.25 to 27 as follows:- “25. For taking action under Section 41-A for removal of the President, Vice- President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the office-bearer concerned and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office- bearer. 26. There are no sufficient guidelines in the provisions of Section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office-bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be 5 exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation. 27. In the present case, the actions of the appellant, even if proved, only amount to irregularities, and not grave forms of illegalities, which may allow the State Government to invoke its extreme power under Section 41-A.” The final impugned order draws its sustenance from the enquiry report of the S.D.O. dated 8.3.2010 and the Director, Accounts, Administration and Self-employment. It has already been noticed hereinabove that as far as charges-B and C are concerned they do not stand established from the report dated 8.3.2010. Charge-A related to an irregularity in granting extended time for joining to a person in the panel who, in any event, is stated not to have been allowed to join by reason of the subsequent instructions of the State Government. The charges are not of a nature to constitute abuse of powers and misconduct on part of an elected representative as discussed in the judgement of the Supreme Court in Tarlochan Sharma’s case (supra) and Sharda Kailash Mittal v. State of M.P. The manner for the exercise of power keeping in mind the consequences that ensue, debarring an elected representative from contesting elections for the 6 next five years has been cautioned by the Supreme Court in paragraph-15 of the judgement of Tarlochan Sharma’s case (supra) in the following terms:- “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 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. 7 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.” If the Principal Secretary was the repository of the executive power, the final order had to be passed by him on his own application of mind containing full reasons and discussion, more particularly when the order is amenable to judicial review. If the statutory authority exercises public power dealing with public issues his order is required to be of a public nature. It was a statutory compulsion for him to discuss the charge, the nature of defence furnished by the petitioner, the other contemporaneous materials available with the Principal Secretary, followed by a brief reasoning and discussion displaying consideration of issues, application of mind to arrive at his own reasoned conclusion and decision. The impugned order in paragraph-7 abruptly concludes that he had considered everything. What he had considered he does 8 not wish to disclose. On a reading of the entire order the Court has no hesitation in holding that the statutory authority has completely abdicated his statutory powers and acted at the behest of the District Magistrate as apparent from paragraph-6 of the impugned order. What the District Magistrate had opined was also not considered necessary to be discussed. It was the ipse dixit of the District Magistrate that was to prevail. When a statutory authority refuses to exercise independent application of mind and acts at the behest of another, the order stands completely vitiated as held in the case of AIR 1970 SUPREME COURT 1896 "Purtabpur Company Ltd. v. Cane Commissioner of Bihar" “13. …The power exercisable by the Cane Commissioner under cl. 6 (1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone- not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by cl. (6) read with cl. (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner.” The reliance by the respondents on an order 9 of this Court in C.W.J.C. No.9374/10 does not come to their aid. The issues of law discussed herein do not appear to have been raised before the Court which therefore had no occasion to apply its mind to the same. In any event, in that case the respondents were indicting the petitioner as it appears from the order. Presently it has already been discussed that even the enquiry reports do not do so on charges-B and C and charge-A was a mere irregularity vitiating the extreme punishment under Section-18(5) of the Act as held in the case of Tarlochan Sharma (supra). The impugned order dated 14.1.2011 is set aside. The application stands allowed. After the order had been dictated, learned counsel for the State suggests that the order be set aside and the matter be remanded. The present proceedings cannot be equated to a departmental proceeding to invoke the process of remand from the stage of illegality. The prayer is rejected. KC ( Navin Sinha, J.)