IN THE HIGH COURT OF JUDICATURE AT BILASPUR 1CHATTISGARH) WRIT PETITION . 22 (émo. , 3.; gé /2aos ESPONDENTS R PETITIONER //V Satyaranjan Mine, S/o Haridas Mine Aged about 35 years Acting Sarpanch, Gram Panchayat Baikunthur, Vikas Khand, Koiiibera, Tah. Pakhanjur, Dist. Kanker, (C.G.) ‘ VERSUS \ 1. State of Chhattisgerh Through Secretary, Panchayat & Rural Department D.K.S. Bhayan, Raipur (C.G.) Sub-divisional Officer, Revenue Tah. Pakhanjur, Dist. Kanker, (C.G.) Ranjit Sana, Gram Panchayat, Baikunthpur, Vikas Khand,. Koiiibera, Tah. Pakhanjur, Dist. Kanker, (C.G.) Director Panchayat, D.K.S. Bhavan, Raipur (C.G.) p / WRIT PETITION UNDER ARTICLE 227 OF \ CONSTITUTION OF INDIA ,I !JN \ kf‘E/& HIGH COURT OF'CHHATTISGARH AT BILASPUR _ W.P. (227) N0. 3286 of2008‘ Satyaranjan Mine Vs. State of Chhattisgarh &v 0thers Writ petition under Article 227 ofthe Constitution of India (Single Bench: Hon-’ble-Mr. N.K. Agarwal, l)“ \ m..-— Brwent : Shri Anand Kumar Shulda, Advocate for the petitioner Shn Saush Gupta, Dy Govt Advocate for the‘ State/respondent No l 2 & 4 I \ Shn Pumt Ruparel Advocate for the respondent No. 3. ORDER (Passed on 23” day ofJune, 20w) With the consent of the parties, me matter is heard tinaily. Thc instant petition is directed against the order dated 12.12.07 (Annexure P/7), passed by the Director, Panehayat, in Revision Case No. 168/A-89/06-07, whereby, the Director, Parichayat has a$rmed the order passed by the respondent No. 2 i.e. SDO, Kanker, against the petitioner’s removal hom the post‘of Acting Sarpanch' under Section 40 of the Panchayat Raj Adhiniyam, 1993‘ (for short ‘Aet, 1993’). The brief facts of the case are that, on a complaint made by the respondent No. 3 and some other persons, an enquiry was conducted against the petitioner by appointing enquiry officer. On 10.08.2006, the enquiry ofhcer submitted his enquiry report to the ChiefExecutive Onicer, Janpad Panchayat Koyalibeda and exonerated the petitioner from the charges leveled against him; ,Thereaiter, one more report was submitted by the same enquiry oftieer on the same date, and according to which, the :4, ’ * f 9% charges of misconduct leveled‘against the petitioner were found correct. Thereaiier, show cause notice dated 21.07.06 was issued to the petitioner ‘by the prescribed authority i.e. Sub Divisional Officer, Revenue, Pakhanjur, Distt. Kanker (for short ‘SDO’), leveling the charge of, misappropriation of fund, regarding poor quality construction of school building etc. The petitioner filed his reply on 28.07.2006 denying all the charges. leveled against him. With regard to charge No. 3, he submitted in his reply that additional school building was constructed in the supervision of Sub Engineer, based on estimate prepare by him and for that payment’s are yet to be made to the contractor. It was further submitted/that regarding .poor construction, Sub Engineer and Panchayat Inspector enquired into the matter. He being an inexperienced person in this regard, if any mistake has been committed regarding quality construction of school building, then the same shall be corrected. Thereafter, based on enquiry report, show cause notice and its reply, J’based on alleged admission regarding poor construction of school building “the prescribed authority i.e. Sub Division 0§icer held that charges leveled against‘the petitioner were proved, and passed the removal order of the petitioner from the post of Acting Sarpanch under Section 40 of the Act, v 1993. The said order has been a$rmed by the Collector, Kanker in appeal vide order dated 05. 12.2006, and‘also aEirmed by the respondent No. 4 i.e. Director, Panchayat, in Revision Case No. 168/A-89/06-07 vide order g dated 12.12.2007 (Annexure P/7). Hence this petition. Shri Anand Kumar, Shukla, learned counsel appearing for the etitioner submits that the impugned order has been passed violating the — a/apn 2r , p 76 documents which are to be reiiedupon ag&inst him and he should have the right to adduoe his own evidence. ii. Admittedly, in the present‘case; neither evidence of inquiry officer was recorded by the prescribed authority nor opportunity was granted to the petitioner to adduce his evidbnco, and therefore; the order has been passed violating the principles of natural justice. Although, notice was issued to the petitioner for whichthe petitioner has hled his reply, but as the charges leveled against the petitioner were grave in nature, the evidence of enquiry ohicer ought to have been taken in'presence ofthe petitioner by aEording opportunity of ‘ cross-examination to him, but’the same was not done. IL? iii. I have perused the reply of show cause notice regarding charge No. 3. ”A bare reading of show cause notice and its reply with regard to charge No. 3 would reveal that the betitioner has not admitted the charge, on the contrary, he tried to explain. the said charge leveled against him, and therefore, merely based on alleged admission regarding charge No. 3 in his reply, the SDO was notjustihed in passing removal order against the petitioner without affording him opportunity of hearing, opportunity of leading evidence and submitting his argument, and therefore, the order passed hy the authority suEers from violation of principles of natural justice. Single Bench of MP High Court in case of Smt. Babita Lilhare v. Shri Surendra Rana and Others (reported in 2004 (5) MPHT 79), observed I in para 7 as under: “It is clear that the SDO has illegally relied upo the preliminary enquiry report, Fair procedure required that to establish the charges against the petitioner witnesses ought to have examined independently by the SDO in proceedings under Section 40 of the Act, the preliminary enquiry n which was conducted in the year 2000 was not part of the proceedings under Section 40 of the Act. When the proceedings under Section 40 of the Act are initiated the Witnesses are required to be examined before the SDO and opportunity has to be given to the Sarpanch against whom removal proceedings are taken to cross-examine the witnesses, that has not been done in the instant case. Even the report of the preliminary enquiry has not been supplied to the petitioner and it is clear that during the course of preliminary enquiry witnesses were not cross-examined and that was not proceeding under Section 40 of the Act. SDO committed basis error in asking the petitioner to adduce evidence first to prove innocence the SDO ought to have first recorded evidence of the witnesses who were supposed to prove the charge against the petitioner, if preliminary enquiry was to be used as evidence by the SDO the petitioner ought to have been given the copy of‘same and if the statements of the witnesses who were not cross-examined during preliminary enquiry were to be relied upon petitioner ought to have given opportunity to cross-examine then in proceeding under Section 40 of the Act. They ought to have been examined ah‘esh in proceedings under Section 4O and were required to state of facts. Thus, in my opinion when no enquiry has been conducted by the SDO to establish the charges and there is no legal and acceptable evidence to establish the charges against the petitioner and basis procedure adopted is faulty. Removal of petitioner is bad in law. Thus, in my opinion, orders (P-3,P-ll and P-l3) are» liable to be set aside and are quashed.” In the aforesaid circumstances, I find merit in this petition and it is allowed. The orders dated 04.08.2006 (Annexure P/4), 05.12.2006 '(An'nexure P/S) and dated 12.12.07 (Annexure P/7) are hereby quashed and thematter is remitted back to the SDO i.e. prescribed authority to proceed in the matter after supplying copy of enquiry report submitted by the /. enquiry officer to the petitioner and the same shall be examined with opportunity of cross-examination to the petitioner. The petitioner be 4» ‘ lwe/nl ?A . u a ’ 77/ the granted one opportunity to submit his evidence, if any, and thereafter, SDO shall proceed to decide the matter in accordance with law. As the matter was of the year 2006 and the petitioner was working as Acting Sarpanch at that time, so if any regular Sarpanch has not been appointed till now, then the petitioner shall be reinstated as Acting Sarpanch, Gram Panchayat, Pakhanjur, Distt. Kanker, till the decision of prescribe authority i.e, SDO V1 or till the appointment of regular Sarpanch in accordance with *law, whichever . 1s . earlier. . No order asto costs. ra ‘ Baikunthpur, Block Koyalibeda, Tah. V Sd/- 7* ii ‘N-K-Agrawal ' i Judge