IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2848 of 2010 1. SHAMBHU SHARAN SINGH S/O SRI PRABHU NARAIN SINGH R/O VILL.- EKARHA, P.O.- EKARHA, P.S.- CHEWARA, DISTT.- SHEIKHPURA, MUKHIYA OF GRAM PANCHAYAT RAJ, LOHAN, BLOCK- CHEWARA, DISTT.- SHEIKHPURA Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY PANCHAYATI RAJ DEPTT. GOVT. OF BIHAR, PATNA 3. THE DIRECTOR, PANCHAYATI RAJ PANCHAYATI RAJ DEPTT. GOVT. OF BIHAR, PATNA 4. THE DISTRICT MAGISTRATE SHEIKHPURA, DISTT.- SHEIKHPURA 5. THE DEPUTY DEVELOPMENT COMMISSIONER SHEIKHPURA, DISTT.- SHEIKHPURA ----------- 3. 03.03.2011 Heard learned counsel for the petitioner and the State. The petitioner is the elected Mukhiya of Gram Panchayat Raj, Lohan under Chewara Block, District- Sheikhpura aggrieved by the order dated 27.8.2010 unseating him from that post in exercise of powers under Section 18(5) of the Bihar Panchayati Raj Act, 2006 (hereinafter referred to as the „Act‟). Learned counsel for the petitioner submits that on the cause of shown by the petitioner, comments had been called for from the District Magistrate. These comments alongwith a vigilance report are the foundation for the impugned order dated 27.8.2010. The petitioner was never made 2 available these documents and they have been admitted as evidence behind his back to indict him without an opportunity to rebutt the same. Learned counsel for the State submits that a show cause notice was given to the petitioner, duly replied and considered. Therefore, no prejudice has been caused to the petitioner. There were a total of nine charges against the petitioner. This Court, therefore, may not interfere with the impugned order. Reliance is placed on 2010 (4) PLJR 314 (Bindeshwar Prasad Vs. State of Bihar & Ors.) affirmed in 2011(1) PLJR 557 (DB) (Bindeshwar Prasad Vs. State of Bihar & Ors.) declining interference with a similar order under Section 18(5) of the Act. The status of the petitioner as an elected person amenable to removal by a no confidence motion in accordance with grass roots democracy and the removal of such an elected person by use of executive power having serious consequences have been noticed in paragraph 6 of the judgment of the Supreme Court in AIR 2001 Supreme Court 2524 (Tarlochan Dev Sharma Vrs. State of Punjab) as follows:- “6. In a democracy governed by rule of law, once 3 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 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.” The issue has again been considered by the Supreme Court in (2010)2 SCC 319 (Sharda Kailash Mittal v. State of M.P) holding at Paragraphs 25 and 26 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. 4 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 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.” Considering the exercise of powers under Section 18(5) of the Act and the consequences that ensue debarring him from contesting election for next five years, this Court in C.W.J.C. No. 18905 of 2010 (Vijay Singh Vs. State of Bihar) has held that a personal hearing has to be read into the “reasonable opportunity” clause contained in the statute relying upon (1989 )2 SCC 505 (State of Uttar Pradesh Vs. Maharaja Dharmandar Prasad Singh) holding at Paragraph-64 as follows:- “64. On the point of denial of natural justice, we agree with conclusion of the High Court, though not for the same reasons, that there has been such a denial in the proceedings culminating in the order of cancellation. The show-cause notice itself is an impalpable congeries of suspicions and fears, of relevant or irrelevant matter and has included some trivia. On a matter of such importance where the stakes are 5 heavy for the lessees who claim to have made large investments on the project and where a number of grounds require the determination of factual matters of some complexity, the statutory authority should, in the facts of this case, have afforded a personal hearing to the lessees. We, therefore, agree with the conclusion of the High Court that both the show- cause notice dated 9-1-1986 and the subsequent order dated 19-4-1986 would require to be quashed, however, leaving it open to the statutory authority, should it consider it necessary, to issue a fresh show- cause notice setting out the precise grounds, and afford a reasonable opportunity including an opportunity of personal hearing and of adducing evidence wherever necessary to the respondent lessees.” While examining an order under the Act, the Court is primarily concerned with the decision making process rather than the merits of the decision. The occasion to go into the merits may or may not arise, depending on the nature of the conclusions and whether there was arbitrariness or gross illegality, perversity etc. in the final decision. Section 18(5) of the Act provides for the grant of “reasonable opportunity”. The words “reasonable opportunity” have to be interpreted in the scheme and consequences of the Act as making available to the petitioner all materials sought to be relied upon against him and to indict him. If any material has 6 been taken into consideration without giving him an opportunity to meet and rebutt the same, amounting to admission of evidence behind his back, it clearly violates the “reasonable opportunity” to be provided for under the statute. The petitioner has specifically asserted in paragraphs 22 to 24 of his petition that copy of the vigilance report was not given to him and neither were the comments of the District Magistrate made available with opportunity to rebutt the same. The respondents have filed a counter affidavit. It wholly and heavily relies upon the report of the Vigilance Department and the comments of the District Magistrate to support the impugned order but it is completely silent and refuses to answer whether these were furnished to the petitioner. Any decision taking into consideration these two documents without furnishing them to the petitioner, with opportunity to rebutt makes the final order arbitrary and illegal as the order clearly suffers from gross infirmity in the decision making process violating the “reasonable opportunity” clause provided for under Section 18(5) of the Act. In (1970) 1 SCC 709 (State of Assam v. Mahendra Kumar Das), ,it has been held at 7 Paragraph -24 as follows: “24. …………..But, we have to state that it is highly improper for an Enquiry Officer during the conduct of an enquiry to attempt to collect any materials from outside sources and not make that information, so collected, available to the delinquent officer and further make use of the same in the enquiry proceedings. There may also be cases where a very clever and astute enquiry officer may collect outside information behind the back of the delinquent officer and, without any apparent reference to the information so collected, may have been influenced in the conclusions recorded by him against the delinquent officer concerned. If it is established that the material behind the back of the delinquent officer has been collected during the enquiry and such material has been relied on by the Enquiry Officer, without its having been disclosed to the delinquent officer, it can be stated that the enquiry proceedings are vitiated………..” The impugned order refers to nine charges. It states the evidence against the petitioner on each charge was the vigilance report. The contents of the report or its discussion finds no reference at all in the impugned order. The petitioner had denied the charges. He is indicted on materials he is not aware of and therefore he had no occasion to answer and deny the same. Referring to the comments of the District Magistrate concurring the vigilance report, the order states that the petitioner had not denied 8 the same. The occasion to reply was denied to the petitioner as no copy of the comments of the District Magistrate was furnished to the petitioner. That the Chief Secretary had consented and approved the impugned action is irrelevant. The law stands well settled and is being reiterated continuously that an order passed by a statutory authority has to be based on independent application of mind. The order must be reasoned and discussed, displaying due application and consideration to the allegations, the defense, the materials against the petitioner, reflecting application of mind by the statutory authority by a process of reasoning to arrive at his own independent conclusion. All these aspects are completely absent in the order dated 27.8.2010 abdicating statutory powers in favour of the Vigilance report and the comments of the District Magistrate. In (1969) 1 SCC 308 (Purtabpore Co. Ltd. v. Cane Commr. of Bihar) it has been held at Paragraph- 12 as follows:- “12. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not 9 absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.” The Supreme Court has emphasized extreme caution in exercising powers of the present nature in Tarlochan Dev Sharma (Supra) at paragraph 15 as follows:- “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 10 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. 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.” On the merits of the matter, of the nine charges, to assess the seriousness of the same, to require removal, an extreme act under Section 18(5) of the Act, the Court finds that the charges relate to non deduction of royalty, suspicious payments (not conclusive wrong payments) non-fulfillment of 11 targets, failure to have audit, failure to comply direction for keeping of a mate, not maintaining the muster role in proper manner failure to pay workers within fifteen days, purchase made without quotation. On a bare reading of the charges themselves this Court has serious reservations of the manner in which liability and consequences have been imposed upon the petitioner for procedural aspects in discharge of duties as a Mukhiya. The Court hopes, trusts and expects that the Secretary Department of Panchayati Raj shall pay due heed and attention to the observation of the Supreme Court at Paragraph -15 of Tarlochan Dev Sharma (supra) of the manner for exercise of statutory powers under Section 18(5) of the Act. In Bindeshwar Prasad (supra) the allegations related to realization of money from beneficiaries under the Indra Awas Yojna, forging the signature of the Panchayat Secretary adding names of beneficiaries. Enquiry was held in which the beneficiaries deposed, the Panchayat Secretary opposed. The aggrieved did not raise any objections that he was denied reasonable opportunity or abdication of statutory powers by the Principal Secretary. The questions of law discussed presently, 12 with regard to the scope of the words “reasonable opportunity” under Section 18(5) of the Act, taking into consideration evidence behind the back, the need for a reasoned order by independent application of mind by the statutory authority, abdication of statutory powers by him etc. on the facts of the case do not appear to have been raised and therefore the Court had no opportunity to discuss or hold upon the same and to test the validity of the impugned orders on the aforesaid grounds. The impugned order dated 27.8.2010 is set aside. The writ application is allowed. P. Kumar ( Navin Sinha, J.)