PETITIONER RESPONDENTS iii ,IWYW) M“ 1C/1o/1o PARTICULARS OF THE PETITIONER:- As given a bove in the cause title of the petition. WRIT PETITION (Cl. NO. ’éggOOF 2097 :4 Udayram Kaiwerth son of late Shri Darbari Lal Kaiwerth, aged about 65 Kr” rgag years, Sarpanch, Gram ‘ Panchayat gxwvb "° Malhar, Tahsii Masturi, District Bilaspur (Chhattisgarh) VERSUS 1—11. State of Chhattisgarh through Secretary, Department of Panchayat Mantralaya, D.K.S. Bhavan, Raipur (Chhattisgarh). / (Chhattlsgarh). 4. The Sub Divisional Officer (Revenue) Biiaspur (Chhattisgarh). Shri Dilip Rathrey son of Shr Mohit Rathre, aged about 32 years, Sarpanch, Gram Panchayat Maihar, Tahsii Masturi, District Bilaspur (Chhattisgarh) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA 1%“ \\ (‘r‘wf’ J I {IJ ’gfgs?$l 1 i 7 2. The Raipur Director, (Chhattisgarh) Panchayat Chhattisgarh, w” “ 3 \5‘ g% ‘ a 1\ I ‘0 $‘ / r3. The Collector, Bilaspur C I )" v», * . v 7’ / i HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENC‘H: HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA Writ Petition (C) NO.6380 of 2007 Petitioner Udayram Kaiwerth Versus State of Chhattisgarh and Others Respondents FOR PRONOUNCEMENT OF ORDER ON ’7 KJUNE, 2011 i 5d]- i Manindra Mohan Shrivastava Judge . HIGH COURT OF CHHATTISGARH : BILASPUR ..... (Single Bench:Hon’ble Shri Manindra Mohan Shrivastava, J. Writ Petition (C) N0.6380 of 2007 Petitioner Udayram Kaiwerth Versus State of Chhattisgarh and Others (Writ Petition under Article 227 of the Constitution of India) Present:- Respondents ' Shri Y. SV Thakur, Deputy Advocate General along with Shri Ajay Dwived Deputy Government Advocate for the State. ORDER (Pronounced on I? -06—2011) By this petition, the petitioner has assailed correctness and valid i of order dated 27-09—2007 (Annexure P—13) passed by the Directo Panchayat, Chhattlsgarh, Raipur in Revision Case No.88/A—89 (15)/06—O by which, order dated 12-02-2007 (Annexure P—7) passed by the Collect Bilaspur and order dated 07-11—2006 (Annexure P-4) passed by the S Divisional Officer (Revenue), Bilaspur, whereby the petitioner has be removed from the office of Sarpanch, have been affirmed. 2. The facts necessary for adjudication of controversy involved in t petition are that the petitioner at the relevant time, was holding the office Sarpanch, after having been duly elected as Sarpanch of Gr Panchayat, Malhar. On certain complaint alleging misconduct in discha of duties and function as Sarpanch of Gram Panchayat, the Sub Divisio Officer directed enquiry to be made by the Chief Executive Officer, Janp Panchayat, Masturi against the petitioner as also against the Secretary Lx ...... Shri Sanjay K. Agrawal along with Shri Sourabh Sharma, counsel for th petitioner. ..A.. o ..... ....., a r, n ......... the Gram Panchayat. Thereafter, the Enquiry Committee was constitut which included Tahsildar, Masturi, Chief Executive office Panchayat Masturi Sub Engineer Janpad Panchayat Masturi Pres'dent Janpad Pamhayat Masturl Panch Gram Panchayat Mai and Social Worker of Village Malhar. The Enquiry Committee noticed complainants as also the Sarpanch and Secretary of the Gram Pancha A report was submitted by the Chief Executive officer, Janpad Panchay Masturi vide his letter dated 25-09-2006 before the Sub Divisional Offic Upon receipt of report, the Sub Divisional Officer registered a case again a e : the petitioner and the Secretary and directed issuance of notice. On 10- 2006, the petitioner appeared and submitted his reply. On 31-10-200: 1‘4 t of the Chhattisgarh Panchaya/t Raj Adhiniyam, 1993 (ln short “t Adhiniyam of 1993”) removing the petitioner from the office of Sarpan and also directing recovery of Rs.‘7,21 ,586/—. 3. Aggrieved by the order of removal, the petitioner preferred an a before the Collector, which was dismissed vide order dated 12-02—2 before the Director, Panchayat. Vide order dated 01-03— 20-04-2007 (Annexure P-12) setting aside the order dated 14-03-2007 w i a direction to afford proper opportunity of hearing to the petitioner and pa appropriate orders, on petitioner’s application dated 09-03—2007 as well e r Vi h ....... t y ..... hy cl Wu pp 0 s a in appeaL Thereafter, the Director, Panchayat i.e. the Revisional Authori- passed the final order dismissing the revision, affirming the order passe by the Coiiector in appeai as aiso the order of removal passed by the Su Divisional Officer. 4. Learned counsel for the petitioner contended that the order removal is unsustainable in law as no proper opportunity of hearing wa afforded to the petitioner as is mandatorily required under Section 40 of th Adhiniyam of 1993. Learned counsel for the petitioner further contende that a slip-shod manner of enquiry was evolved by the Sub Divisio n Officer, in which, instead of he himself holding the enquiry, being th prescribed authority, directed enquiry committee to be constituted und the chairmanship of the Tahsildar, who conducted some enquiry a submitted enquiry report, which was made basis for the impugned action removal. Further submission of learned counsel for the petitioner is that tt copy of enquiry report was also not supplied to the petitioner. Furth submission of learned counsel for the petitioner is that the Sub Division Officer did not issue proper show cause notice to the petitioner specifica l stating the charges of misconduct, on which, action was proposed to b ...... taken against the petitioner, but simply an order of appearance w b passed. The petitioner submitted his own version by way of reply, h ..... thereafter nothing happened. Neither enquiry report was supplied nor t statement of witnesses or the material documents/records forming basis enquiry report, were supplied to the petitioner. Neither witnesses w examined nor the petitioner was given any opportunity to lead o evidence. The bone of contention has been that no enquiry was held the Sub Divisional Officer, but on the basis of some enquiry, copy of whi » c n a e r b has not been supplied to the petitioner, the petitioner has been remo from the office of Sarpanch. The Sub Divisional Officer conducted farce enquiry. He submits that on 26~09-2006, a case was registered notices were directed to be issued. Thereafter on 10-10-2006, th petitioner submitted his reply and on that date itself, it was recorded th the case was directed to be listed on 31-10—2006, on which, it w recorded that final order could not be passed and then on 07—1 1-2006, fi order has been passed, which shows that no enquiry was made by th Sub Divisional Officer in the matter. ln support of his submission, learned counsel for the petitioner relié upon Tarlochan Dev Sharma vs. State of Punjab & Others, (2001) i SCC 260, Sharda Kai/ash Mittal vs. State of Madhya Pradesh anf t / Others, (2010) 2 SCC 319, Banasmani vs. State of Madhya Pradesh 1980 MPLJ 34, Raja Rajsingh vs. State of Madhya Pradesh, 2000 ( MPHT 490, Sarita Mabre vs. State of Madhya Pradesh, 1998 (1) 420, Kailash Kumar Dangi vs. State of Madhya Pradesh, 1992 JLJ 28 Ballabh Das vs. State of Madhya Pradesh, 1998 (2) JLJ 303, De Transport Corporation vs. D.T.C. Mazdoor Congress, AIR 1991 SC 101, Babita vs. Surendra , 2004 (1) MPLJ 27, Faiz Mohammad ‘ '1,;State of Madhya Pradesh, 2004 (4) MPHT 393 and Mango Bai vs. State of Madhya Pradesh, 2003 (2) MPLJ 112. \ 5. On the other hand, learned counsel for the State submitted that t petitioner was found having committed serious irregularities and l committed misconduct of the nature stated in the impugned Order. He submitted that upon receiving complaint, the Sub Divisional Offi directed enquiry to be made under the leadership of Tahsildar and v a a n 1 J 0 h c H i committee consisting of six persons scrutinized the records of Gra Panchayat and also heard the petitioner, who was noticed in the enqui The committee found on facts tha‘t serious irregularities were committed i the petitioner. The said report was forwarded to the Sub Divisionai Offic whereafter the Sub Divisional Officer afforded proper opportunity hearing to the petitioner by issuing him a notice. He further submits th the petitioner has full knowledge and notice of the nature of the allegatio leveled against him, which is clear from the fact that the petition ' " submitted his reply before the Sub Divisional Officer. Thereafter, the Su b Divisional Officer after taking into consideration the enquiry report, mate r on record, reply of the petitioner, recorded a finding of fact with regard guilt of the petitioner. Learned State counsel further submitted that t petitioner has not specifically raised any ground in appeal with regard non-supply of enquiry report or other adverse material collected agai him in the enquiry, but while preferring revision, several grounds w taken relating to procedural irregularities, which were rightly rejected byt Revisional Authority. He further submits that all that is required in view the provisions contained in Section 4O of the Adhiniyam of 1993 is ensure reasonable opportunity of hearing, which has been afforded to t '\ l /.R a ‘petitioner, in as much as copy of enquiry report was in fact supplied to t petitioner and the petitioner had full opportunity of meeting out each a every allegations and controvert the material, on the basis of whi enquiry committee found charges proved against the petitioner. 6. In the writ petition, the petitioner has specifically stated in para 3 affidavit that the petitioner was neither given a copy of ex~parte enqu report nor the‘ particulars of charges were supplied. ln Para 6.2 oft e ...... c ? grounds raised by the petitioner, it has been clearly stated that the cop enquiry report submitted and relied upon by the other side has not b supplied to the petitioner and the Sub Divisional officer relying upon sarhe report directed removal of the petitioner. it has also been stated non—supply 'of enquiry report to the petitioner has resulted in g prejudice and the petitioner has been deprived of reasonable opportu as required by the proviso to Sub Section (1) of Section 4O of t Adhiniyam of 1993. from the return of the respondents, it is an admit H position on record that the Sub Divisional Ofdcer had directed enquir be conducted against the petitioner and the Secretary, pursuant to whi six member enquiry committee was constituted under the chairmanshi -, x the Tahsildar, Masturi. This is clearly evident from the copy of enqi ur report, which has been placed on record by the respondents themselv along with the return. Therefore, it is clear that the enquiry was conduc against the petitioner and the enquiry report was prepared by six mem enquiry committee. Order sheet dated 26-09-2006 (Annexure P-3) a shows that the Sub Divisional Ofdcer received enquiry report from office of Chief Executive Officer, Janpad Panchayat, Masturi. In the ret though the respondents have stated that in the enquiry conducted by t averment in the return that copy of enquiry report was ever supplied to petitioner or allowed to be inspected either by the enquiry committee o the Sub Divisional Officer. It has not been stated anywhere in the retu that enquiry report, documents attached thereto and the statem recorded were allowed to be inspected by the petitioner. ln para 14 of return, reply has been given in following words:- l , ‘Tahsildar, the petitioner had also participated, there is no spe‘ e ...‘.. t ..... r n t : ’ o t w t t l‘ r ‘ “14. Reply to Para 6 (Grounds) of the Petition:- ln view of the submissions made in the foregoing paragraphs, grounds are avaiiabie to the present petitioner and aii the grou raised in this paragraph are liable to be ignored and the petitio liable to be dismissed. It is apparently clear that the respondents have clearly avoided replyin specific allegations raised by the petitioner to the effect that enquiry report i supplied to the petitioner. A perusal of order sheet dated 26-09~2006, 10-1 0—2 31-10-2006 and 07-11—2006 (Collectively filed as Annexure P—3) also does record that copy of enquiry report was ever supplied to the petitioner along the notice on any dates of hearing. in the absence of specific denial rega non-supply of enquiry report and absence of any other material on record pl r / by the respondents to satisfy the Court regarding supply of enquiry report, Court has to hold that enquiry report, which constituted the solitary ma adverse to the petitioner, was not supplied to the petitioner. This result serious prejudice to the petitioner. On going through the order passed by the Divisional Officer, the Collector as also by the Director, Panchayat in Rev Case, Appeal and the Revisional proceedings, it is crystal clear that the en i \only material forming basis for removal of the petitioner from the offic (Sarpanch. Section 40 ofthe Adhiniyam of 1993 confers drastic powers o Sub Divisional Officer to remove a Sarpanch elected through the democ process. Proviso to sub section (1) of Section 40 of the Adhiniyam of 1993 cl obliges the Sub Divisional Officer to give an opportunity to show case agains ‘ proposed action of removal. The opportunity required to be afforded has to reel opportunity and not a farce. Removal of an elected Sarpanch thr democratic process is a serious matter. Therefore, the drastic power conferre the Sub Divisional Officer to remove Sarpanch cannot be permitted to report has been made basis to hold the petitioner guilty of misconduct and l _ ...... ac’ ...... t e n ....... exercised except in accordance with the manner and following proced established by law. The requirement of giving an opportunity to show cause se to fulfill the requirement of principles of natural justice. The requirement of giv an opportunity to show cause necessarily includes an opportunity to defend charges. This would mean that the specific allegation of misconduct dra against the Sarpanch, are required to be stated in the notice itself, so that Sarpanch may know as to what exactly are the allegations against him, whic required to be replied. ln the absence of any specific allegations and charg r service of notice in a simple form merely requiring appearance on given date say the least, would be a fraud on power. In the present case, a perusal of not t ‘ (Annexure P—1) shows that the petitioner was only issued a simple revenue not requiring him to appear in the office of Sub Divisional Officer on a particular d a This notice by no stretch of imagination can be said to be a notice propos removal from the office on specific charges/allegations of misconduct. Thus, fr the very beginning, the enquiry has been reduced to a farce. It appears that as the petitioner had participated in the enquiry under chairmanship of Tahsildar, he had knowledge about various allegations leve against him, upon which, he could say. The petitioner submitted his version way of reply. This however does not absolve the Sub Divisional Officer from obligation to supply the petitioner a copy of enquiry report. Copy of enquiry rep f has been placed on record by the respondents themselves along with the retu <’ ‘ The enquiry report contains detailed discussion based on certain records Panchayat. Though, none of the parties have been placed before the C o I complete records of enquiry, it is reflected from the enquiry report that the cert oral statements have also been recorded. The enquiry report therefore not o nl contains discussions of oral and documentary evidence collected in the enq u and the conclusion thereupon by the Enquiry Committee, but also those releva documents and oral statements, recorded during the course of enquiry. All the constituted adverse material against the petitioner. On that very basis, the S 9 Divisional Officer initiated proceedings under Section 40 o'f the Adhiniyam of against the petitioner. It is argued that the Sub Divisional Officer did not su§ m’ revenue notice. Non supply of enquiry report, relevant documents and .... testimony along with the enquiry report, therefore definitely resulted in sen violation of principles of natural justice resulting in’ violation of statutory ma engrafted under Section 40 of the Adhiniyam of 1993 in the matter of givi n opportunity to show cause against thevaction of removal. any material whatsoever to the petitioner except giving a stereo type profor 7. No sooner the petitioner submitted reply to the Sub Divisional Office r " x Sub Divisional Officer proceeded to pass the order of removal. It is not a where the enquiry report submitted before the Sub Divisional Officer was m / treated as preliminary enquiry to initiate a full fledged enquiry by issuing a ‘ cause notice. Present is a case, where the fact finding report in enquiry, conducted by some other officer, which have been made the sole basis to the petitioner guilty of misconduct without conducting further enquiry. The : Divisional officer neither supplied the copy of enquiry report to the petitione r summoned any of the records, on the basis of which, the enquiry report prepared. The order sheets do not show and nor is it the case of the respond that the Sub Divisional Officer recorded statements of the complainants or o .r' persons/officers & servants of Panchayat. The order sheet does not show tha '\ 1 petitioner was required to adduce oral or documentary evidence to rebu charges against him. All that, the Sub Divisional Officer has done is that enquiry report has been obtained from the Tahsildar, and thereafter final o has been passed. 8. The submission of learned counsel for the respondents that in appeal petitioner did not raise specific grounds relating to non supply of copy of enquiry report, therefore, the same could not be raised before this Court, does . n ..... s .. .. t t) , 10 appeal to this Court and required to be rejected for the reason that Violatio statutory provisions incorporating principles of natural justice could alwa raised for the first time before the Court in a writ petition filed under 226/227 of the Constitution of India. OthenNise also, l find that the petition taken specific ground relating to procedural irregularities before the Revi Authority, but those grounds have not been considered by the Revi Authority. l have also found that the Collector as well as the Revisional Aut have recorded that the petitioner was supplied copy of enquiry report. Ho the respondents have failed to plead, much less proving that the enquiry r was supplied to the petitioner. 9. The enquiry contemplated under Section 40 of the Adhiniyam of 199 definitely a quasi judicial enquiry into the allegation of misconduct. Proviso to ,x'section (1) of Section 40 of the Adhiniyam, 1993 lays down statutory mandat no person shall be removed unless he has been given an opportunity to cause why he should not be removed from his office. Therefore, it is an i’ requirement of law that the person against whom proceedings of removal from office are initiated, is required‘to be noticed stating in clear words, charges/allegations on which ‘he is proposed to be removed from the off Unless, the person knows as to what are the charges/allegations against him would not be in a position to defend those charges. Even though, the statute / fnot lay down as to in what manner the notices are required to be drawn, nevertheless obligatory on the Sub Divisional Officer to clearly state in the no the specific charges/allegations of misconduct, on the basis of which, remov proposed. If a proposal to remove on certain charges of‘misconduct is based certain enquiry report, it is obligatory on the part of the’ Sub Divisional Offic supply copy of enquiry report along with the notice to the person against w l proceedings under Section'40 of the Adhiniyam of 1993have been initiate ‘A l n y ..... A e s s ho‘ w e e s mpl ..... d d 11 against him by the enquiry committee and made a basis to record adv findings against him. The person, who has been proceeded against is entitled to an opportunity to submit his own reply oneach and every fin contained in the enquiry repod. In case, the enquiry report is founded on the certain oral and docum evidence, it is essential that minimum requirement of principal of natural j should be followed. Therefore, those adversematerial in the form of oral examine any witness and inspect any of the records and statements which been recorded and relied upon» in the enquiry report, he is entitled to c examine the said witness and inspection. Moreover, if the person facing enq proceedings of removal under Section 40’of the Adhiniyam of 1993, want- adduce oral and documentary evidence, proper opportunity should als afforded. documehtary evidence should also be supplied to the person facing enquiry. in case, the person Who is facing charges of removal intends to c 10. in view of the discussion as above and specific finding recorded b Court that the petitioner was not supplied the copy of enquiry report, nor the, or documentary evidence on which enquiry report is based, it has to be held proper opportunity of hearing was denied to the petitioner, which resulted i only violation of statutory mandate engrafted under Section 40 of the Adhini 1993, but also principles of natural justice. The action is therefore illegal. order of removal of the petitioner from the office of Sarpanch is illegal and ca be sustained in the eye of law and has to be set aside. The order passed b l l l l l , person facing enquiry proceedings under Section 40 of the Adhiniyam of 1993 case, the Sub Divisional Officer intends to place reliance upon the enquiry re This is so because the enquiry report constitutes adverse material again removal. Therefore, a copy of enquiry report has to be supplied, so th u e r r h p s a d ” 12 Sub Divisional Officer dated 07-11-2006 (Annexure P-4), the Collector date 02-2007 (Annexure P-7) and the Director Panchayat dated 27-09-2007 (Arin P-13) are hereby set aside. Liberty is reserved to the Sub Divisional Offic draw appropriate proceedings against the petitioner by affording him due proper opportunity of hearing in the light of the observations made by this hereinabove. 11. In view of foregoing, the petition is allowed. No orders as to cost. Sd/- Manindra Mohan Shrivastava Judge l i Tumane e