IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2964 of 2011 BABY KUMARI SINGH . Versus THE STATE OF BIHAR & ORS . ----------- 2. 28.02.2011 Heard learned counsel for the petitioner and the State. The petitioner is the elected Mukhiya of Gram Panchayat Raj, Kharauna under Lalganj Block, District-Vaishali, aggrieved by the order dated 21.01.2011 passed by the Principal Secretary, Department of Panchayati Raj unseating her from that post in exercise of powers under Section 18(5) of the Bihar Panchayat Raj Act, 2006. Learned counsel for the petitioner submits that assuming though not admitting that the allegations are correct, they pertain to a single allegation of one wrong appointment of an Anganwari Sewika. It does not justify draconian punishment on principles of abuse of power or misconduct under Section 18(5) of the Act to debar her from contesting elections for the next five years. Reliance is placed on the judgment of the Supreme Court in 2001 SC 2524 (Tarlochan Dev Sharma Vs. State of Punjab & Ors.) at Paragraph-10. “10. 10. The expression 'abuse of powers' in the context and 2 setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate. It implies a wilful abuse or an intentional wrong. An honest though erroneous exercise of power or an indecision is not an abuse of power. A decision, action or instruction may be inconvenient or unpalatable to the person affected but it would not be an abuse of power. It must be such an abuse of power which would render a Councillor unworthy of holding the office of President. Inasmuch as an abuse of power would entail adverse civil consequences, the expression has to be narrowly construed. Yet again, the expression employed in S. 22 is 'abuse of his powers or habitual failure to perform his duties.' The use of plural powers, and the setting of the expression in the framing of S. 22 is not without significance. It is suggestive of legislative intent. The phrase 'abuse of powers' must take colour from the next following expression 'or habitual failure to perform duties.' A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving, dishonesty of intention is 'abuse of powers' within the meaning of S. 22 of the Act. The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision.” The next submission is that the Secretary called for the comments of the District Magistrate on the cause shown by the petitioner. The comments by the District Magistrate on the cause shown by the petitioner was not furnished to the petitioner with an 3 opportunity to rebutt the same. Evidence was thus admitted behind her back and which has heavily been relied upon by the Secretary to indict the petitioner. In any event of the matter, there has been complete abdication of statutory authority when he has acted at the dictates of the District Magistrate. The order is unreasoned, abrupt and does not contain any discussion of the application of independent mind by the Secretary to the allegations, the defence, to arrive at a considered finding displaying a process of reasoning why the explanation was not acceptable. Learned counsel for the State submits that the final order has been passed after giving a show cause notice. If there are any infirmities, the matter may be remanded. The power under Section 18(5) of the Act has far reaching effect on an elected representative. Considering the effect that it has on the elected representative, this Court in C.W.J.C. No. 18905 of 2010 already held that personal hearing has to be read into Section 18(5) of the Act and the comments of the District Magistrate if relied upon have to be furnished to the Mukhiya with an opportunity to rebutt the same failing which the final order is 4 unsustainable in law. The present order cannot be equated simplicitor with a departmental proceeding conducted against an appointed person as distinct from use of executive power to oust an elected person by an easier method rather than the moving of a no-confidence motion. The principle of remand from the stage of illegality in a departmental proceeding shall ipso facto not apply here. The order dated 21.1.2011 is set aside. The application stands allowed. P. Kumar ( Navin Sinha, J.)