IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4479 of 2010 ANIL KUMAR CHOUBEY, S/O-SHRI ONKAR NATH CHOUBEY, RESIDENT OF VILLAGE & P.O. PARMANPUR, P.S.- NAWANAGAR, DISTRICT-BUXAR, BIHAR ………. PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, PANCHAYATI RAJ DEPARTMENT, BIHAR, PATNA. 2. THE PRINCIPAL SECRETARY, PANCHAYATI RAJ DEPARTMENT, BIHAR, PATNA 3. THE DISTRICT MAGISTRATE, BUXAR 4. THE BLOCK DEVELOPMENT OFFICER, NAWANAGAR, DISTRICT- BUXAR ……………… RESPONDENTS ----------- 2. 21.04.2010 A counter affidavit has been filed by the State and an intervention petition has been filed by a person who had made the complaint and on whose complaint, the District Magistrate had forwarded his report to the State Government, pursuant whereof, State Government has taken the action. In my view, intervention cannot be allowed because the challenge is to the statutory order of the State Government and the State Government is thereto defends its order. It is not a lis between a private individual and the petitioner. The intervention application is accordingly rejected. The petitioner was a duly elected Mukhiya of Parmanpur Gram Panchayat in the District of Buxar. He was elected in the year 2006. He has challenged the order of the State Government issued in terms of Section 18(5) of the Bihar Panchayati Raj Act, 2006 whereby he has been removed from the post allegedly on grounds of abuse of power. 2 Firstly, I must notice that the State Government itself initiated the proceedings by issuance of show-cause notice dated 27.10.2009 for irregularities which were done in the year 2007- 2008. One, with regard to non-payment of salary to four Panchayat Teachers and the second with regard to irregularities in distribution of diesel subsidy. If, the abuse of power was so grave which required the State to take such a drastic action whereby Executive was to remove a democratically elected Mukhiya, the action should have been prompt and not after two years. As would be seen, there appears to be a tussle between the B.D.O., Nowanagar and the petitioner which had started immediately on petitioner being elected as Mukhiya and it is an outcome of this battle, for supremacy and of control of Panchayat, as between Executive and democratically elected Mukhiya, this final order has resulted in such a situation, which is unfortunate. It is to be noted by this Court that even while proceeding had just been initiated by the State Government in terms of Section 18(5) against the petitioner, the B.D.O. as if was the Controlling Officer having disciplinary control over the Mukhiya, restrained the Mukhia from performing his statutory functions which brought the petitioner to this Court in CWJC No. 16354 of 2009, which after hearing the parties was disposed of by this Court by its order dated 18.12.2009. A reference to that order which is Annexure 5 to the writ petition would show that this Court pointed out that B.D.O. was 3 merely Executive Officer of the Panchayat in true meaning. He was subordinate to the Panchayat and thus subordinate to the Mukhiya. He was to execute orders of the Mukhiya. He was incharge of employees of the Panchayat and I may mention that against his orders with regard to staff of Panchayat, the Appellate Authority is the Mukhiya and not vice-versa. He cannot issue orders to the Mukhiya rather he has to take orders from the Mukhiya. Thus, the order of the B.D.O. restraining the Mukhiya was held wholly without jurisdiction and struck down by this Court. Now, coming to the present proceeding, the first charge as is evident from the show cause notice under Annexure 1 is that in spite of orders of the B.D.O., the petitioner is refusing to sanction payment of honorarium to four Panchayat Teachers as if, the Mukhiya was subordinate to the B.D.O. as noted above, that is not correct. The Mukhiya’s stand was that, B.D.O. had illegally appointed these four Panchayat Teachers, acting beyond his jurisdiction and therefore, the Mukhiya had deleted their names and as per the seniority list, included four other names. This conflict of interest gives rise to the first charge. From the show cause, it is apparent that allegations being there, the B.D.O. had sent some report to the Collector of the District who made enquiries and then forwarded his enquiry report to the State Government for action. It is based on that show-cause notice which was issued to the petitioner. 4 The show-cause notice dated 27.10.2009 is Annexure 1. Two charges are levelled. First, that four Panchayat Teachers are not being paid their honorarium even though, they are appointed as such, and the second charge is with regard to irregularities in distribution of diesel subsidy. Petitioner filed his voluminous show- cause. So far as first charge is concerned, he took stand that it was the Panchayat Samiti which made appointments of Panchayat Teachers. Four persons who were not so appointed, appealed to the B.D.O.. The B.D.O. without noticing four of selected candidates allowed the appeal of not enlisted candidates, cancelled four appointments who all had higher marks and higher seniority and appointed these four. As the Panchayat Samiti did not consider this order to be appropriate, it disputed the correctness thereof and refused to pay to the appointees of B.D.O.. It cannot be said to be an abuse of power, it is submitted, in terms of Section 18(5). So far as the second charge is concerned, allegation was made that to some persons payment of diesel subsidy was done by forging their signatures. The petitioner apart from filing their affidavits that they had received the payment produced Register to show that signatures were not forged. Thus, it was submitted these are sweeping allegations which can be made against any one at any time and were factually not correct. The show-cause having been filed, State, sent a copy thereof to the Collector for his response. The Collector then gave 5 his detailed response to the stand taken by the petitioner contradicting it in material particulars. It is not in dispute that this report/response of the Collector of the District, as received by the State and as relied on by the State in the impugned order was never disclosed to the petitioner. Upon consideration of the aforesaid, the State found that once B.D.O. had ordered for appointment of four Panchayat Teachers, then Mukhiya was bound to pay and non-payment of remuneration of the four amounted to abuse of power. So far as the second aspect about irregularities in distribution of diesel subsidy is concerned, State Government rejected all the affidavits as filed by the petitioner saying that they are notarized affidavits and not sworn before the Court in terms of the Section 164 Cr.P.C. and in absence of affidavit in terms of Section 164 Cr. P.C. , they could not be relied. Having considered the matter, in my view, this clearly establishes legal malice as against the State. As noted above, there have been considered judgments of this Court that B.D.O. is not an authority superior to Mukhiya, if anything, he is subordinate to Mukhiya for carrying out the orders of the Mukhiya/Panchayat. I may here mention that earlier there was Rule 18 in the Bihar Panchayat Elementary Education (Employment and Service Condition) Rules, 2006. Rule 18 thereto made the B.D.O. an Appellate Authority over the orders passed in relation to 6 appointment, non-appointment of Panchayat Teachers but I may also mention that seeing the grave contradiction in the provision where under the Panchayati Raj Act, B.D.O. was to execute the order of the Panchayat Samiti and the Mukhiya, the B.D.O. being its Executive Officer giving this power of appeal over the Panchayat to the B.D.O., State has deleted the said Rule and substituted it by constituting an Appellate Tribunal at the District level for this purpose. In the show cause, the petitioner brought to the notice of the Government that the order of the B.D.O. making appointment of the four Panchayat Teachers had been disapproved by the Chief Secretary and by the D.M. also. I may also note that this Court in a writ petition filed by one of them(B.D.O. appointee) has already set aside the order of the B.D.O. and directed them to approach the Appellate Tribunal in the matter. Thus, the very substratum of the order of the State vanishes. That apart, as would be presently shown that it is not for any mere dereliction that the State is authorized to exercise power under Section 18(5) of the Act. The situation should be grave enough to warrant an interference as the power is an exceptional power given to the executive to undo what was democratically done and must be used exceptionally and not in a routine manner, as if, State is dealing with disciplinary proceedings. This is the view of the Apex Court in recent judgment dealing with similar provision 7 and a similar dispute which arose from Madhya Pradesh under similar statutory provisions Referring to the earlier judgment of the Supreme Court in the case of Tarlochan Dev Sharma vs. State of Punjab which again was considering similar provisions of the Punjab Municipal Act, their Lordships in the case of Sharda Kailash Mittal vs. State of Madhya Pradesh (2010) 2 SCC 319 have clearly held that 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. The conferring jurisdiction in the matter have held that this is an exceptional power given to the Executive and must accordingly rarely be exercised and if necessary, in grave cases only. Reference may be made to Paragraphs 24, 25 and 26 of the said reports in Sharda Kailash Mittal’s case(supra). The second charge is with regard to irregularity in distribution of diesel subsidy. The defence of petitioner has been rejected on a technical ground that the affidavits could not be relied on as they were notarized affidavits and not affidavits in terms of Section 164 Cr. P.C. This is totally misconceived in fact and in law. The said provision is with regards recording confessions etc. in criminal cases. It has no application to affidavits. It state doubted the authenticity thereof they could have asked for better particulars. It could not reject the defence on this misconceived ground. Here, I may take note of one more important aspect. 8 After petitioner filed his show cause before the State, the matter was then referred back to the Collector for enquiry and in his response, the Collector gave his written response contradicting the stand taken by the petitioner as noted in the impugned order itself. These were considered departmentally and the impugned order has been passed on basis of its finding and on the findings as recorded by the Collector, but the fatal mistake committed was that Collector’s response to petitioner’s show cause was never disclosed to the petitioner. It was only departmentally examined, a clear negation of principles of natural justice rendering the order void and invalid. Thus, for the reasons stated above, the application is allowed. The impugned order of the State Government dated 08.03.2010 removing the petitioner as a Mukhiya is set aside. Saurabh (Navaniti Prasad Singh, J.)