Rc THc Hem BLE HIGH COURT OF CHHAmSGA EF ‘ ) No. [0?}/2009 ar p” ur‘re, a‘ed about of hriSahas Ra urre, S‘panc ranchaya' arve, ‘rah D‘ist. anJIr—Chainpa (C JanJgur Jg G VU ERSS tae of atusar through the ecretary V’ w.h.( c _$ Girw Ra SOn Years] \ RESROEN‘T NDS Deartment o Phy kh ancaat t Dau aan mg‘ hawan, Mantralaya, Ralpur (CG he Direcor Panchat, Ralur. p f Sh ' : B ) T t ya) p h‘ iona eotc JanJgIr—ampa (CG The Su DIVISIonal Officer Rev lstt i anjgw—Champa (CG) is Dtt. ¢ Panchayat — BataudaGazar Dist f€G§ \I'MW C4 Km») I , E 5 ’0~,J ‘ _ I VRET PETETE®N UND ‘ ONSTITUTION OF INDI :f I O RH BILAsPUR ., Single Bench K g g3 S‘} m' K Erh Gam\Pt J t , /5t Chhgh S, a 3 4e Addhi letoh, Ch ) b ( ),‘ JanJgIr, ,D. i ’ J ’ t . g~ W i i ; W ER ARTICLE 226‘ 227 OF THE C A w alight &emd aed aMuz 59 years, Sla. Gama am $9M, Paesmw gawanah, 33$ vulage Jamie immi) ah. Vilian & Fa“ hrw www strwt Janjgiwmmpa (mm) m . g m A HIGH COURT OF CHHATTIS§ARH : BILASPUR S B. . HON’BLE SI-IRI MANINDRA h’IOHAN SHRIVASTAVA J i Writ Petition [Cl No.10? of 2009. PETITfONER ‘ Girwar Ram K 1 c ‘ 1 Versus _ f ' - RESPONDENTS State of Chf1attisgarh 85 Ors. Petition ujArticle 226/227 of the Cbnstitution of India Appearance : / Mix Sanjeev Verma, counse1 for the petitioner. Mr. Ajay DW1V€d1 Dy. Govt. Advocate for the State/respondents No 1 to 4 Ms ’I‘mptl Dewangan, counsel for respondent No 5 None tor respondent ‘\Io 6 ORAL- ORDER {Passed on 5.4.201 1) Heard. 2. This petition is directed against the order dated 151020081: (Annexure P- 1) passed by the Director; Panchayat, whereby theE revision preferred by the petitioner against order dated 4.6.2008 i passed in appeal by the Additional Collector, who, in 0.1111,? >, affirmed the order of removal passed by the Sub-Divisional, 'if / Offl'ceryhas been dismissed. " v g @ . TIE: facts necessary for decision of; the present petition are that ? € I whge the petitioner was working as Sarpanch of Gram K Pangchayat Jarve, Tahsil- Janjg‘r, a show-cause notice (Annexure P—5)i was issued to the petitioner by the Sub Divisional Oiiicer/ Prescribed Authority, initiating‘ proceedings under Secuon i i 4O oi the Panchayat Ra} Adhiniyam, 1993 (hereinafter referred to i as ‘z‘the Act of 1993”). The show ca! se notice (Annexure P—5) contained as many as 13 allegations of misconduct alleged to be i com‘mitted by the petitioner. In replygto the show cause notice, the lipetitioner denied all the ailegations. After receiving the reply i of the pet1t1oner, the Sub Diwsional‘ Ohicer passed impugned order dated 7th February 2008 (Annexure P-3), by which placmg heavy reliance upon the enquiry report the petitloner was iound e i guilty of various misconduct and removed from the oilice of S Sarpanch. . Aggrieved by the said order of removal, the petitioner preferred an appeal before the Additional Collector. The appeal 6f th‘e petitioner was dismissed by the Additional Collector vide its order dated 4th June, 2008 (Annexure P—2). The petitioner then preferred an appeal before the Director, Panchayat. The Director Panchayat, Vide its order dated 15.10.2008 (Annexure P—lf) dismissed the said appeal, aiiirming the order passed by the Additional Collector and the order of the Sub-Divisional Officer. ; i 01 .- Learned counsel for the petitioner contended that the order of removal of the‘petitioner is in utter violation of the provisions cofltained in Section 4O of the Panchayat Raj ‘Adhiniyam, 1993, as? the Sub Divisional Officer did not make anv enqLiry by allowmg the petitioner to examine his Witnesses He further ‘ submits that the Sub DiViSional omcer himself did not conduct 1‘ ‘ any enquiry but got the enquiry conducted by Some other I ofiicer/Chief Executive Oiiicer of Janpad Panchayat, Baloda and the said enquhy report was not sup:plied to the petitioner. It is als‘o submitted that the adverse material collected against the l petitioner in the enquiry, which included various statements including statement of complainant were also not supplied to the petitioner and the Sub D1V151onal Ohicer relying upon the enquiry report prepared by the Chief Executive Othcer, Janpad Panchayat- Baloda, proceeded to record a tindlng of guilt against the petitioner. Though the petitioner had taken a specific ground before the Appellate Authority/Additional Collector that the petitloner was not supplied copy of the enquiry report nor the statement of Witnesses were supplied which deprived the petitloner of his valuable right of detence for want of disclosuregoi adverse material but that was not taken into consideration by the Appellate Authority and the Appellate Authority again committed same illegality of gomg into the material collected and enquiry report prepared by the Chief Executive Officer to comezto the conclusion that the petitioner’is guiltypof‘\ misconduct- and I x.’ TV “T ,'\x > V i - 4 . i lssed the appeal The Revlsm a1 Authonty 1€ Dlrector Pchayat has not consadered the aforesaid illegalities and an irularities committed in the enquiry held by the Sub Divisional reg Oer and dismlssed the rev1s1on Learned counsel for the peioner further submitted that in View of the prov1s10n cained in Section 4O of the Act of 1993 the Sub DiViSional - cer was obliged under the law to conduct an enquiry 1n the. prence of the petitioner and no reliance could be placed on an eniry report prepared by some other officer, even assuming qu \ tha such a‘ report could be made a basis to initiate proceedings t under Section 4O of the Act of 1993. 1 .n he other hand learned counsel “for the §tate/respondents O t 1 4 submitted that the grievance of the petitioner as stated efe this Court that the copy of enquiry report and other material collected by the Chief Executive Ofhcer, Balod, Including statement of witnesses, were not supplied to the petitioner, is le to be rejected, as no specific ground to that effect has been ak in the writ petition, but only vague grounds have been kn. Learned counsel for the respondents~State further tae sbmitted that there has been full compliance of the provision- nained in Section 4O of the Act of 1993, inasmuch, as after cot receiving enquiry report from the Chief Executive Oil‘icer, the Sub w Divisional Ofhcer issued a show cause notice to the petitioner in which each and every allegation was spec1fica11v stated so that the \ \ petitioner could reply to the same Therefore, the petitloner was dlsm ffic tit ont Offi se to bor iabl ten u W‘ :v < glven Just and proper opportumty of heanng to show cause agamst the proposed removal L ed counsel for the State V further argued that 1n case the petmoner needed any document _, 1t was for the pet1t1oner to have made spec1f1c: prayer and ralsed demand for supply of vanous documents, Wh1ch the petltloner d1d “not do. He further subnzuts that ere 1s nothmg on recordto show that the peuuoner, before the §ub D1v1$1ona1 Ofhcer, made I any prayer for exammmg any w1tnesses or made any prayer for cross exammauon of any of the persons whose statement were recorded by the Chlef Executlve Oiiicer He further submrts that the enqulry bv the Sub D1v1$1ona1 Quiver 1s not requlred to be held 11ke a c1v11 Court proceedmgs and once the petmoner has been g1ven a proper opportunlty to explam allegauons agamst tum, there 1s no procedural defect so as to warrant mterterence by this Court and merely because the Sub D1v1s1onal OtT’lcer drd not record the statement of the petitioner’s witnesses or other persons, the order of removal cannot be sa1d to be 111ega1 on the ground that 1t 1s Vlolatwe of prmcrples of natural Justxce _ } » x ‘Learned counsel for respondent No 5 also supported the ~subm1ss1ons made by learned counsel for the State and V subm1tted that thls petltion 1s not mamtamable as the petmoner has not unpleaded the Sarpanch who was subsequently elected in the vacancy caused by the petltloner. l < 55" AN 8. Thé Show cause notice dated-17.11. ' 005/ (Annexure P—S) shows that the Sub Divisional Offlcer (RV, escribed Authority issued sed on certain irregularities ‘ Show cause notice to the petitioner, b found in an enquiry conducted by Ihe Chief Executive Officer, 1 Janpad Panchayat Baloda and enquiry report submitted by him The petitloner submitted h1s reply to the show cause notice, wherein, he denied the allegations made agamst him. Thereafter, thef Sub Divisional Ohicer passed order dated 7.2.2008 (Annexure P-S), by which the petitioner was removed from the oilice of Sarpanch and also declared disqualiiied for a period of 6 years. A perusal of the order passed by the Sub D1v1$10nal Offlcer shows that the only material bas1s for holding the charges proved ‘ against the petltloner was enquiry report submitted by the Chief Executive Officer, Janpad Panchayat, Baloda. The Sub Divisional Offwer recorded that the reply submitted by the petitioner. was not satisfactory and on the basis of the enquiry report, failure on the part of the petitioner to produce records during the ‘course pf enquiry and other irregularities, the complaint filed against the petitioner is found to be primafacie correct. It is, thus, clear that the Sub Divisional Oiiicer passed, the order against the petitioner by holding charges proved, relying solelybn the enquiry report submitted by the Chief Executive Officer. Against the said order, the petitioner preferred an appeal before the Additional Collector. The Addl. Collector, however, vide its order dated 4.6.2008 dismissed the appeal. A perusal of the order passed by the Addl. T, M Céllzector (Annexure P—2) would show that amongst Various r gmhnds, one of the main ground to assail the correctness and va‘lijdity of the order of removal, taken‘ by the petitioner in appeal, was that the copy of enquiry \report was not supplied to the petitioner. It was also one of the grour ds raised in the appeal that the statements of the w1tnesses recorded by the enquny officer were also not supphed to the peu’u‘oner It was ra1sed by the penuoner that the petltloner was demed opportumty of cross— exam1nat10n by the enqmry officer and the petmoner was not granted opportumty 7- o lead ev1dence The Appellate Authonty/Addl Collector however, d1d not consrder any of the aforesald grounds ralsed by the petltloner, but proceeded to record that 1n the enquu'y conducted by the Chief Execut1ve Officer, the pet1t1oner d1d not produce records and from the report of the Chief Executive Ofiicer, the compliant is found pn’ma facie 1 correctand some 0f the allegations, though not at all, were found / ‘ proved The Collector also rehed upon the same enquiry report 1n respect of wh1ch the petitioner had raised specmc ground that 1t was not supphed to him In the entire order passed by the Additional Collector, there is no cons1deration of the various grounds urged by the petitioner which have been referred to hereinabove When the petitioner preferred a rev1s10n before the Director, Panchayat raising Similar grounds then again the Rev1s1onal Authority relied upon the enquiry report prepared by the Chief Executive Officer, Without there beingpany cons1deration r 1 r 1 « 7. o e peioner’s ground that th nqly rr slied to the petioner. Otr rons which relte sly of tatements f itnes record in‘the , dal o opportnity f crss-e tio of te enquiry flce a no forg o oppt t lead ence ere ot x onsud T Dir hayat o ed t the ciere he ector Panc wever, rcorde hat etitr di emand ennen t s no pione d not d the douts and tha he ha s iar llged agi . answer to variou rregulities ae anst him 9. Fro the rdes ch been s y th Sub onal H m or wh1 have pased b e D1ws1 Offer, Addon Cletor and ecto Panchaa ic mal olc Dirr yt 1t 1s reeal tat n autie c u ved h one of the horits onsidered the grond that ther w io f e ins f natra jutce a py o e as vlation o th prciple o ul si, s co f t epr o ttement the witnesses were nt he;enqujry rot, cpy of sas of o pped o the petionr. n ne th oun t‘o suli t tie I fact, no of e grd relating procedural irreglrty was ei muc les he effec uai xamned h s t t and mct of such rocedur ula of o uppl o o 1pa pal irregrity nn sy f cpy eny report and sten f ness quir atemt o w1tes e er es t le b o 10. Th ord passed by the authoriti show tha the so asis, fr holding the petitioner guilty of various misconduct, is the report of the Chief Executive Ohicer. The petitioner was an elected representative of a Gram Panchayat The matter relating to removal of an elected representative 1s a serious matter The “\x I prov1s1ons contained 1n Section 40 of the Act of 1993 protect an ") Kw elected Sarpanch from being! removed w1thout aifordmg an E" .~ / \ 7. i f th tit e eui gpot was not upp it he gud ad to non- upp the s o wses ed enquiry eni f u o ox ‘ an h oir nd n afdm f orunitv o ev1d w n l opportunity of hearing to him. The pro ‘sion‘requiring affording of oppértunity against the proposed ac 'on of removal is not an empty formality. As long as the enquiry report is merely made a r ba’sijs to inmate an enquiry, unless th same is“ demanded; it may z same. However, in a case, like the pre, ent one, where the enquiry , report 1s the whole and the sole baSIS for arrlvmg at conclusmn that the charges are proved the prinmples oi natural Justice requn‘e such enquny report to be supphed to the Sarpanch even without demand made ’in that regard. ’It is trite that if any document or record is sought to be used against in an enquiry d made a bas1s to hold the charges proved the same ls required to be supplied or at least inspection should be allowed Moreover, the cop1es of the statement of Witnesses were not supplied to the petitioner. But, none of these grounds werge considered either by the Appellate Authority or by the Revisional Authority Therefore, the impugned orders dated 15 10 2008 passed by the Director, Panchayat and order dated 4 6 2008 passed by the Addit10nal Collector are clearly unsustainable in ' t ' ' law They are liable to be set aside and are accordingly set as1de The matter 1s remanded to the Appellate Authority/ Add1t10nal Collector, JanJgJr-Champa to consnier the specrtic grounds raised ' by the pet1t10ner With regard to non supply of enquirv report and statement of Witnesses recorded dunng enquu'y. The Appellate Authority/Additional Collector shall consider the aforesaid J not ;be necessary under all circums ’ es to' supply a copy of the y -10.. grfounds and decide as to whether th the order of removal by the arid proper healing before passing Sub Divisional Officer. 1 1. The petition is! accordinglyl partly allo i i e petitioner was afforded due wed. i V. Sd/- E4; Manindra Mohan Shrivastava‘ l Judge